The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various diseases, including rinderpest, foot-and-mouth disease (FMD), African swine fever, hog cholera, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest or free of both rinderpest and FMD. Rinderpest or FMD exists in all other parts of the world not listed. Section 94.11 of the regulations lists regions of the world that have been determined to be free of rinderpest and FMD, but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest- or FMD-affected regions.

On February 1, 2002, we published in the Federal Register (67 FR 4927-4930, Docket No. 01-041-1) a proposal to amend the regulations to add Estonia to the list in § 94.1(a) of regions that are considered free of rinderpest and FMD. In that document, we also proposed to add Estonia to the list in § 94.11(a) of regions declared free of rinderpest and FMD, but that are subject to certain import restrictions on meat and meat products because of their proximity to or trading relationships with rinderpest- or FMD-affected countries.

We solicited comments concerning our proposal for 60 days ending April 2, 2002. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register . This rule adds Estonia to the list of regions considered free of rinderpest and FMD. We have determined that approximately 2 weeks are needed to ensure that Animal and Plant Health Inspection Service personnel at ports of entry receive official notice of this change in the regulations. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective 15 days after publication in the Federal Register .

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This rule adds Estonia to the list of regions that are considered free of rinderpest and FMD and to the list of regions subject to certain restrictions because of their proximity to or trading relationships with rinderpest-or FMD-affected countries. These actions update the disease status of Estonia with regard to rinderpest and FMD while continuing to protect the United States from an introduction of those diseases by providing additional requirements for any meat and meat products imported into the United States from Estonia.

We do not expect that this rule will have a significant economic impact on any entities, large or small, in the United States. Estonia does not produce sufficient quantities of ruminants or swine, or products of ruminants or swine, to significantly affect the U.S. market even if all of Estonia's production were exported to the United States. 1 For example, Estonia's production of beef and veal, mutton and lamb, and pigmeat (51,120 metric tons) was equivalent to less than 0.5 percent of those commodities produced in the United States in 2001. During the same period, Estonia's stock of live cattle, sheep, and pigs (585,200 head) was equivalent to less than 0.5 percent of comparable stock in the United States. Similarly, Estonia's milk production (690,000 metric tons) was less than 1 percent of the total production of milk in the United States in 2001. 2

The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small entities. Given the small amount of Estonia's production, domestic producers in the United States are unlikely to be affected in any measurable way. Other entities that might be affected are brokers, agents, and others in the United States who could become involved in any future importation and sale of ruminants or swine or products of ruminants or swine from Estonia. The number and size of those entities is unknown, but it is reasonable to assume that most of those entities would be small according to the standards set by the U.S. Small Business Administration. However, for the reasons discussed above, any economic impact on those entities, as well as any other affected entities in the United States, should be minimal.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

On April 25, 2002, the OCC published a notice of proposed rulemaking in the Federal Register (67 FR 20466) to amend the OCC's assessment regulation for independent trust banks. The comment period ended on May 17, 2002. We received no comments on the proposal, and are therefore adopting it without change except for the addition of a minor technical amendment.

Section 8.6(c) of the OCC's regulations provides that assessments for independent trust banks will include a “managed asset component” in addition to the assessments calculated under § 8.2. Under § 8.6(c)(1)(i), all independent trust banks must pay a minimum fee. In addition, under § 8.6(c)(1)(ii), independent trust banks with “managed assets” in excess of $1 billion must pay an additional amount. Currently, the regulation defines the asset base upon which the additional assessment is applied by reference to Schedule A, Line 18 of the Annual Report of Trust Assets (FFIEC Form 001). FFIEC Form 001 was replaced effective December 31, 2001 by FFIEC Forms 031 and 041, Schedule RC-T—Fiduciary and Related Assets.

The proposal amended the definition of “Trust assets” in § 8.6(c)(3)(iv). The defined term was changed to “Fiduciary and related assets” to reflect the terminology used in Schedule RC-T of FFIEC Forms 031 and 041. The proposal also replaced the reference to FFIEC Form 001 with a reference to assets reported on Schedule RC-T of FFIEC Forms 031 and 041, any successor form issued by the FFIEC, and any other fiduciary and related assets defined in the Notice of Comptroller of the Currency Fees. “Fiduciary and related assets” reported on Schedule RC-T reflect the types of assets, managed in a trust or fiduciary-related capacity, covered by the now-outdated cross-reference in the current rule, plus certain other similarly managed assets (corporate trust and agency accounts) not reported on the previous FFIEC form due to imprecisions in the instructions to the form.

The proposal also removed references in §§ 8.6(c)(1) and (c)(1)(ii) to “managed assets” and “trust assets under management,” and replaced them with the new term “fiduciary and related assets,” which is used in Schedule RC-T of FFIEC Forms 031 and 041.

The final rule adopts all of these amendments to part 8 without change.

The proposal also made a technical correction to § 8.1, correcting the reference to “12 U.S.C. 93A” to “12 U.S.C. 93a.” The final rule adopts this amendment and also corrects § 8.1 by adding 12 U.S.C. 1867 and 3108 to the list of authorities.

Any new regulation that imposes “additional reporting, disclosure, or other requirements on insured depository institutions shall take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form,” unless certain exceptions apply. Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325, sec. 302(b) (September 23, 1994). This rulemaking imposes no such additional reporting, disclosure, or other requirements. Accordingly, the requirement to delay the effective date until the first day of the next calendar quarter does not apply. Further, pursuant to 5 U.S.C. 553(d), the publication of a substantive rule generally shall not be made less than 30 days before its effective date unless certain exceptions apply. One such exception contained in 5 U.S.C. 553(d)(3) permits an agency to publish a rule that is immediately effective if the agency finds good cause to do so and publishes its reasoning with the issuance of the rule. It is necessary for this final rule to become effective on June 1, 2002 in order to avoid inconsistency between the current OCC regulation and the form independent trust banks are required to use to calculate the next semi-annual assessment. Notice of the assessment will be given on June 1, 2002 and the assessment will be due by July 31, 2002.

An agency must prepare a Regulatory Flexibility Analysis if a rule it proposes will have a “significant economic impact” on a “substantial number of small entities.” 5 U.S.C. 603, 605. If, after an analysis of a rule, an agency determines that the rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) provides that the head of the agency may so certify.

The OCC has reviewed the impact this final rule will have on small national banks. For purposes of this Regulatory Flexibility Analysis and final regulation, the OCC defines “small national banks” to be those banks with less than $100 million in total assets. Based on that review, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this conclusion is that only 10 trust banks with total assets of less than $100 million will likely be affected. The OCC believes, as a result, that the rulemaking will not have an impact on a substantial number of small institutions.

The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that the final rule will not result in expenditures by state, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this rulemaking requires no further analysis under the Unfunded Mandates Act.

Public Law 100-656, enacted on November 15, 1988, incorporated into the Small Business Act the previously existing regulation that recipients of Federal contracts set aside for small business or SBA 8(a) Program procurement must provide the product of a small business manufacturer or processor, if the recipient is other than the actual manufacturer or processor. This requirement is commonly referred to as the Nonmanufacturer Rule. The SBA regulations imposing this requirement are found at 13 CFR 121.406(b) and Section 303(h) of the law provides for waiver of this requirement by SBA for any “class of products” for which there are no small business manufacturers or processors in the Federal market. To be considered available to participate in the Federal market on these classes of products, a small business manufacturer must have submitted a proposal for a contract solicitation or received a contract from the Federal government within the last 24 months.

The SBA defines “class of products” based on six digit coding systems. The North American Industry Classification System (NAICS) replaced the Standard Industrial Classification (SIC) code. The second is the Product and Service Code established by the Federal Procurement Data System.

This document waives the Nonmanufacturer Rule for bearings, plain, unmounted and bearings mounted, North American Industry Classification System (NAICS) 333613.

Documents proposing to waive the nonmanufacturer rule for unmounted and bearings mounted, on April 4, 2002 (67 FR 16063) and on May 8, 2002 (67 FR 30820). No comments were received.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for the Federal Republic of Germany, notified the FAA that an unsafe condition may exist on Eurocopter Model EC135 helicopters. The LBA advises that installing modified engine-control software is necessary to sustain automatic engine control.

Eurocopter has issued Alert Service Bulletin No. EC135-71A-019, dated August 30, 2001, which specifies modifications to the FADEC software and modifications to the LVDTs. Turbomeca has issued Service Bulletin No. 319 73 2019, dated March 26, 2001, which provides instructions for replacing the FADEC, or alternatively modifying the FADEC software. The LBA classified these service bulletins as mandatory, and issued AD 2001-304/2, effective October 19, 2001, to ensure the continued airworthiness of these helicopters in the Federal Republic of Germany.

This helicopter model is manufactured in the Federal Republic of Germany and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

This unsafe condition is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, this AD is being issued to prevent deactivation of the engine main fuel-metering valve, loss of automatic control of the affected engine, and subsequent loss of control of the helicopter. This AD requires modifying the FADEC software and the LVDTs. The actions must be accomplished in accordance with the service bulletins described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the engine power and controllability of the helicopter. Therefore, modifying the FADEC software and the LVDTs are required within 50 hours time-in-service, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

The FAA estimates that 22 helicopters will be affected by this AD, that it will take approximately 10 work hours to accomplish the modifications, and that the average labor rate is $60 per work hour. The manufacturer has stated that parts will be provided at no cost. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $13,200.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-69-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The FAA has developed NDB RWY 13, Amendment 3 and VOR RWY 13, Amendment 1 SIAPs to serve Fremont Municipal Airport, Fremont NE. The modification of Class E airspace at Fremont NE will provide additional controlled airspace at and above 700 feet AGL in order to contain the amended SIAPs within controlled airspace, and thereby enhance safety and efficiency of IFR flight operations in the Fremont NE terminal area. The modified Class E airspace will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 fee or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J, dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where Visual Flight Rules (VFR) pilots may anticipate the presence of IFR aircraft at lower altitudes, specially during inclement weather conditions. A greater degree of safety is achieved by depicting the area of aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this action will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 02-ACE-5.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On April 5, 2002, the United States Court of Appeals for the District of Columbia Circuit issued an opinion, 1 generally affirming Order No. 637. 2 However, among other things, the Court vacated and remanded the policy adopted in Order Nos. 636 and 637 that existing customers need only match a contract term of up to five years when exercising their right of first refusal. To prevent confusion in contracting and disruption to the market during the brief, but unavoidable, interim before the Commission can fully address the issues raised in the Court's remand, the Commission is issuing this Interim Policy, providing for the term cap currently in the pipelines' tariffs to govern the right of first refusal during the interim period.

The Court also remanded the policy adopted in Order No. 637 that pipelines must permit segmented forwardhaul and backhaul transactions to the same delivery point, each of which may use mainline capacity up to the contract demand of the underlying contract. The Commission will not address that issue in the individual pipeline proceedings to comply with Order No. 637 until after the issuance of the order on remand.

This order is in the public interest because it clarifies for pipelines and their customers the policies to be in effect while the Commission considers the Court's remand.

In Order No. 436, the Commission adopted a regulation giving pipelines pre-granted abandonment authority under Section 7(b) of the NGA, 15 U.S.C. 717f(b), to terminate open access transportation service to a shipper once its contract had expired and it had no contractual right of renewal. 3 In Order Nos. 500-H and 500-I, the Commission interpreted that regulation as applying to all open access transportation services, including transportation service provided to the pipelines' historic sales customers who converted their sales service to transportation service. On review of Order Nos. 500-H and 500-I, the court remanded the issue of pre-granted abandonment authority to the Commission, finding that the Commission had not “adequately explained how pregranted abandonment trumps another basic precept of natural gas regulation—protection of gas customers from pipeline exercise of monopoly power through refusal of service at the end of a contract period.” 4

In the subsequent Order No. 636 proceeding, the Commission determined that pre-granted abandonment authority would be tempered with a right of first refusal for firm customers with a contract longer than one year. 5 Accordingly, Order No. 636 adopted a regulation providing that such a shipper could retain its service under a new contract by matching the term and the rate (up to the maximum rate) offered by the highest competing bidder. 6 In Order No. 636, the Commission contemplated that the bids the existing shipper must match could be for any contract length. However, on rehearing, in Order No. 636-A, the Commission capped the contract length the existing shipper must match at 20 years. The Commission did not, however, amend the regulation adopted in Order No. 636 to include the 20-year cap.

On appeal, however, the Court found the 20-year cap was not justified by the record and remanded it for further explanation. 7 The Court stated that the Commission had not adequately explained how the twenty-year term matching cap protects against the pipelines' preexisting market power, particularly why the 20-year cap would prevent bidders on capacity constrained pipelines from using long contract duration as a price surrogate to bid beyond the maximum approved rate, to the detriment of captive customers. On remand, the Commission changed its policy and adopted a five-year term matching cap in Order No. 636-C. It relied on the fact most commenters in the Order No. 636 proceeding had supported a term matching cap in the range of five years and more recent evidence showed that five years was about the median length of all contracts of one year or longer between January 1, 1995 and October 1, 1996. 8 Since the 20-year term matching cap had not been included in the Commission's regulations, this change did not require any change in the Commission's regulations. However, the Commission required all pipelines whose current tariffs contained term caps longer than five years to revise their tariffs consistent with the new policy.

On rehearing, in Order No. 636-D, the Commission recognized that pipelines had raised legitimate concerns about whether the five year term matching cap was causing a bias toward short-term contracts, with adverse economic consequences for both pipelines and captive customers. However, the Commission deferred further consideration of the term cap to the proceeding which became the Order No. 637 proceeding in Docket No. RM98-10-000, where a more current record could be developed.

In the Order No. 637 proceeding, the Commission continued the five-year cap policy, finding that none of the parties presented evidence to support the conclusion that a five-year contract is atypical in the current market. On appeal, the Court found that, in doing so, the Commission did not address any of the objections that had been raised concerning the five-year cap and had relied on the same evidence that it had used to make its decision in Order No. 636-C, namely the fact that five years was about the median length of all contracts of one year or longer. 9 The Court concluded that the only evidence supporting the Commission's final decision to choose a five-year cap was the original record, which in the Commission's own view was incomplete. The Court held the Commission had neither given an affirmative explanation for its selection of five years, nor had it responded to its own or the pipelines' objections to the five-year cap. The Court also questioned why the Commission used a median to function as a ceiling. Consequently, the Court vacated the five-year cap and remanded the issue to the Commission. 10

In the Order No. 637 proceeding, the Commission also addressed segmentation of capacity, under which shippers may divide their mainline capacity into segments with each mainline segment equal to the contract demand of the original contract. As a general matter, shippers may overlap those mainline segments, but only up to the contract demand of the underlying contract. In Order No. 637-A, the Commission clarified that a shipper using a forwardhaul and backhaul to bring gas to the same delivery point in an amount that exceeds its contract demand is not overlapping mainline capacity. On appeal the Court found that the Commission had not adequately addressed whether this policy modified the contracts between the pipeline and its shippers or adequately supported the need for any contract modification.

The Commission lacks a sufficient record at this time to respond to the Court's concerns regarding the term cap used for the right of first refusal. As the Court itself noted, the most recent evidence developed in the prior proceedings concerned contract term lengths during the years 1995 to 1996. In addition, the Commission must address the objections that have been raised by the pipelines and other parties and those which it has raised itself. The Commission intends to proceed expeditiously to solicit evidence and views concerning the length of the term cap.

However, there will inevitably be a gap between the time the Court's mandate issues, and the time the Commission can issue a substantive order on remand responding to the Court's concerns about the term matching cap. This raises the question of how the right of first refusal is to be exercised in the meantime as long-term contracts with right of first refusal rights expire. The Commission is concerned that uncertainty over the exercise of those rights could cause market disruption and believes that existing shippers and competitors for their capacity need to be able to negotiate new contracts without the uncertainty that a contract could be invalidated by the Commission's determinations concerning the term cap in an order on remand.

In the interim, the Commission continues the term cap of five-years currently in pipeline tariffs as an interim policy. The Commission will not apply its subsequent order on the merits of the Court's remand on this issue to overturn any contracts entered into under this interim policy. This will enable existing shippers with a right of first of refusal, and competitors for their capacity, to compete for that capacity under known rules that will not change, and thus avoid upsetting their expectations.

This Interim Policy will govern the term cap for contracts with the right of first refusal and will be effective from the date of issuance of this policy statement until the Commission adopts a different policy or rule on the maximum term that a holder of a contract with a right of first refusal must meet to retain its contract.

The Commission also intends to solicit comments on the remanded forwardhaul/backhaul issue. The Commission required pipelines to allow a shipper to deliver full contract quantities via forwardhauls and backhauls to a single delivery point as part of its general requirement that shippers be permitted to segment their capacity. Whether individual pipeline tariffs improperly restrict segmentation is currently being addressed pursuant to NGA section 5 in the pipeline filings to comply with Order No. 637. Until the Commission has acted on the Court's remand of the backhaul/forwardhaul issue, the Commission will not be in a position to make the necessary section 5 findings in the compliance proceedings to require pipelines to permit backhauls and forwardhauls to the same point. Therefore, the Commission will not address that issue in the compliance proceedings until after the issuance of the order on remand.

The final regulations that are subject to this correction are under section 6050 of the Internal Revenue Code.

As published, final regulations (TD 8992) contains an error that may prove to be misleading and is in need of clarification.

This document is available as an electronic file on The Federal Bulletin Board the day of publication in the Federal Register . By modem, dial 202/512-1387 and type “/GO FAC,” or call 202/512-1530 for disk or paper copies. This file is available for downloading without charge in ASCII and Adobe Acrobat7 readable (*.PDF) formats. For Internet access, the address for use with the World Wide Web (Home Page), Telnet, or FTP protocol is: fedbbs.access.gpo.gov. This document and additional information concerning the programs of the Office of Foreign Assets Control are available for downloading from the Office's Internet Home Page: http://www.treas.gov/ofac, or in fax form through the Office's 24-hour fax-on-demand service: call 202/622-0077 using a fax machine, fax modem, or (within the United States) a touch-tone telephone.

On June 26, 2001, the President, invoking the authority, inter alia, of the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (“IEEPA”), issued Executive Order 13219 (66 FR 34777, June 29, 2001), effective at 12:01 a.m. eastern daylight time on June 27, 2001. The order declared a national emergency with respect to “the actions of persons engaged in, or assisting, sponsoring, or supporting, (i) extremist violence in the former Yugoslav Republic of Macedonia, southern Serbia, the Federal Republic of Yugoslavia, and elsewhere in the Western Balkans region, or (ii) acts obstructing implementation of the Dayton Accords in Bosnia or United Nations Security Council Resolution 1244 of June 10, 1999, in Kosovo, threaten the peace in or diminish the security and stability of those areas and the wider region, undermine the authority, efforts, and objectives of the United Nations, the North Atlantic Treaty Organization (NATO), and other international organizations and entities present in those areas and the wider region, and endanger the safety of persons participating in or providing support to the activities of those organizations and entities, including United States military forces and Government officials.”

Section 1 of the order blocks, with certain exceptions, all property and interests in property of (1) persons listed in the Annex to the order and (2) persons designated by the Secretary of the Treasury, pursuant to criteria set forth in the order. Section 1 of the order further states that the blocking of property and interests in property includes, but is not limited to, the prohibition of the making or receiving by a United States person of any contribution or provision of funds, goods or services to or for the benefit of a person designated in or pursuant to the order.

Section 2 of the order prohibits any transaction by a United States person or within the United States that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the order, as well as any conspiracy formed to violate such prohibitions.

Section 4 of the order authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to take such actions, including the promulgation of rules and regulations, as may be necessary to carry out the purposes of the order. In furtherance of those purposes, the Department of the Treasury's Office of Foreign Assets Control (“OFAC”), acting under authority delegated by the Secretary of the Treasury, is promulgating the Western Balkans Regulations, 31 CFR Part 588 (the “Regulations”).

Subpart B of the Regulations sets forth the prohibitions contained in sections 1 and 2 of the order. See: §§ 588.201, 588.204. Appendix A to 31 CFR chapter V has previously been amended to incorporate the names of persons set forth in the Annex to the order. Persons identified in the Annex to the order or designated by or under the authority of the Secretary of the Treasury pursuant to the order are referred to throughout the Regulations as “persons whose property or interests in property are blocked pursuant to § 588.201(a).” Their names are or will be published on OFAC's website, announced in the Federal Register and incorporated on an ongoing basis into appendix A to 31 CFR chapter V, which lists persons subject to various sanctions programs administered by OFAC.

Sections 588.202 and 588.203 of subpart B detail the effect of transfers of blocked property in violation of the Regulations and the required holding of blocked property in interest-bearing blocked accounts. Section 588.205 of subpart B provides that all expenses incident to the maintenance of blocked physical property shall be the responsibility of the owners and operators of such property, and that such expenses shall not be met from blocked funds. The section further provides that blocked property may, in the discretion of the Director of OFAC, be sold or liquidated and the net proceeds placed in a blocked interest-bearing account in the name of the owner of the property.

Section 588.206 of subpart B details transactions that are exempt from the prohibitions of part 588. These exemptions derive from the exemptions set out in sections 203(b)(1), (3) and (4) of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)) and relate to personal communications, the importation and exportation of information or informational materials, and travel. The President determined in sec. 1(b) of the order that donations of the type specified in sec. 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)), i.e., donations of articles such as food, clothing and medicine intended to be used to relieve human suffering, would seriously impair the President's ability to deal with the declared national emergency. Accordingly, the donation of such articles is not exempted from the scope of these Regulations and is prohibited, unless authorized by OFAC.

Subpart C of part 588 defines key terms used throughout the Regulations and subpart D sets forth interpretive sections regarding the general prohibitions contained in subpart B. Transactions otherwise prohibited under part 588 but found to be consistent with U.S. policy may be authorized by one of the general licenses contained in subpart E or by a specific license issued pursuant to the procedures described in subpart D of part 501 of 31 CFR chapter V.

Subpart F of part 588 refers to subpart C of part 501 for applicable recordkeeping and reporting requirements. Subpart G describes the civil and criminal penalties applicable to violations of the Regulations, as well as the procedures governing the potential imposition of a civil monetary penalty.

Subpart H of part 588 refers to subpart D of part 501 for applicable provisions relating to administrative procedures. Subpart I of the Regulations sets forth a Paperwork Reduction Act notice.

Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) (the “APA”) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. However, because of the importance of the issues addressed in these regulations, this rule is being issued in interim form and comments will be considered in the development of final regulations. Accordingly, the Department encourages interested persons who wish to comment to do so at the earliest possible time to permit the fullest consideration of their views. Comments may address the impact of the Regulations on the submitter's activities, whether of a commercial, non-commercial or humanitarian nature, as well as changes that would improve the clarity and organization of the Regulations.

The period for submission of comments will close July 29, 2002. The Department will consider all comments received before the close of the comment period in developing final regulations. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. The Department will not accept public comments accompanied by a request that a part or all of the submission be treated confidentially because of its business proprietary nature or for any other reason. The Department will return such submission to the originator without considering them in the development of final regulations. In the interest of accuracy and completeness, the Department requires comments in written form.

All public comments on these Regulations will be a matter of public record. Copies of the public record concerning these Regulations will be made available not sooner than August 28, 2002 and will be obtainable from OFAC's website ( http://www.treas.gov/ofac ). If that service is unavailable, written requests for copies may be sent to: Office of Foreign Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania Ave., NW., Washington, DC 20220, Attn: Chief, Records Division.

Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting and Procedures Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been previously approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

On July 20, 1999, the Coast Guard published an interim rule entitled, Drawbridge Operation Regulations, Atlantic Intracoastal Waterway SC in the Federal Register (64 FR 38829). The Coast Guard received 43 comments on the interim rule, although 12 of these were actually in response to the since-discontinued test period preceding the interim rule. A public hearing was not requested and one was not held.

The Lady's Island Bridge (also known as the Woods Memorial Bridge) over the Atlantic Intracoastal Waterway (Beaufort River), mile 536.0 at Beaufort, South Carolina, has a vertical clearance of 30 feet at mean high water and 37 feet at mean low water. Before August 23, 1999, the draw opened on signal, except that from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., Monday through Saturday the draw only had to open on the hour. During the months of April, May, June, September, October, and November, Monday through Friday from 9 a.m. to 4 p.m., the draw only had to open on the hour, twenty minutes after the hour, and forty minutes after the hour.

The City of Beaufort requested that the Coast Guard change the existing regulations by eliminating openings during morning and evening rush hours and limiting the openings to twice an hour between rush hours. The operating regulations for this bridge had not been changed since 1986 and vehicular traffic had increased. The new schedule allows individuals crossing the bridge to plan their transit times and avoid delays from bridge openings, while still meeting the reasonable needs of navigation.

The Coast Guard has received 43 comments regarding the interim rule and the test period that preceded it. Thirty responses were in favor of the new schedule and 13 were against the new schedule. Of the 13 comments against the schedule, 12 comments responded to a three-month test period which provided that the bridge need not open from 7 a.m. until 9 a.m., Monday through Friday. These comments requested the schedule begin at 7:30 a.m. instead of 7 a.m. each weekday.

The interim rule addressed this issue by beginning the schedule at 7:30 a.m. Additional information since the implementation of the interim rule from the City of Beaufort and other commenters shows that changing the regulation to 7:30 a.m. rather than 7 a.m. has aggravated vehicle traffic flow because vessels accumulate at the bridge at 7:30 a.m. awaiting the last opening and the bridge opens longer to pass the vessels. By changing this final rule from 7:30 a.m. to 7 a.m., we hope to alleviate the vehicle traffic congestion that has occurred as a result of the longer bridge openings. The one commenter against the interim rule did not want the rush hour closures at all and wanted to change the schedule so the bridge would open on the hour and half-hour between 7 a.m. and 6 p.m. We have carefully considered these comments and believe the interim rule should be adopted with the following change, the morning weekday schedule should begin at 7 a.m. instead of 7:30 a.m.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory polices and procedures of DOT is unnecessary because the rule will meet the needs of navigation while easing the flow of vehicular traffic during peak traffic periods.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities because the rule will meet the needs of navigation while easing the flow of vehicular traffic during peak traffic periods with scheduled openings.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this action and concluded that, under figure 2-1, paragraph (32) (e) of Commandant Instruction M16475.1D, this rule is categorically excluded for further environmental documentation.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The terrorist attacks of September 2001 killed thousands of people and heightened the need for security checks on all modes of travel, particularly those modes by which foreign nationals can enter the country. In the maritime context, extra time is needed for security checks. Vessels bound for U.S. ports and places could experience delays in entering port if required arrival information is not received early enough.

On October 4, 2001, we published a temporary final rule entitled “Temporary Requirements for Notification of Arrival in U.S. Ports” in the Federal Register (66 FR 50565). Subsequently, we published two corrections in the Federal Register [November 19, 2001 (66 FR 57877)] and [January 18, 2002 (67 FR 2571)]. The temporary rule increased the time for submission of a notice of arrival (NOA) from 24 to 96 hours prior to arriving at port; required centralized submissions; temporarily withdrew exemptions from reporting requirements for some groups of vessels; and required passenger, crew, and cargo information.

We are extending the effective period of the temporary final rule so that we can complete a rulemaking [(USCG-2001-11865), RIN 2115-AG35, “Notification of Arrival in U.S. Ports”] to permanently change the notice of arrival requirements. Extending the effective date until September 30, 2002, should provide us enough time to complete the rulemaking.

We did not publish a notice of proposed rulemaking (NPRM) for this rule and it is being made effective less than thirty days after publication in the Federal Register . When we promulgated the October 4 rule, we intended to either allow it to expire on June 15, 2002, or to cancel it if we made permanent changes before that date. We are now preparing an NPRM to make permanent changes to the notice of arrival requirements. That rulemaking will follow normal notice and comment procedures, and a final rule should be published before September 30, 2002. Continuing the temporary rule in effect while the permanent rulemaking is in progress will help to ensure the security of our ports and the uninterrupted flow of maritime commerce during that period. Therefore, the Coast Guard finds good cause under 5 U.S.C. 553 (b)(B) and (d)(3) for why a notice of proposed rulemaking and opportunity for comment is not required and why this rule will be made effective fewer than 30 days after publication in the Federal Register .

This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

We expect the economic impact of this rule to be so minimal that a full Regulatory Assessment under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary; however, a Regulatory Assessment has been prepared and may be viewed in the docket for this project. As discussed in the temporary final rule preamble, the Coast Guard has temporarily changed the notice of arrival (NOA) regulations. When assessing the impact of the temporary requirements, we estimated that providing the Coast Guard with the additional information about passengers, crew, and cargo will impose minimal burden on vessels already complying with the notification requirements of 33 CFR part 160, subpart C. We estimated that, by suspending some exemptions, the temporary rule imposed a heavier burden on vessels that were exempt from reporting but that are now required to report in accordance with § 160.T208. As explained below, the total cost of this temporary rule should not exceed $754,648:

Cost and Burden. Coast Guard data on Notification of Arrival information for 1998 and 1999 were used to estimate the maximum populations affected by the temporary rule. Table 1 categorizes the affected vessel population into four sub-populations. They are:

• “Non-AMVER/Non-Great Lakes Vessels”—vessels already required to comply with NOA regulations;

• “AMVER”—vessels complying with the Automated Mutual Assistance Vessel Rescue system and that were exempt from NOA requirements prior to the temporary rule;

• “Great Lakes Vessels”—vessels greater than 300 gross tons, on Great Lakes routes, that were exempt from NOA requirements prior to the temporary rule; and

• “Vessels on Scheduled Routes”—vessels operating upon a route that is described in a schedule that is submitted to the Captain of the Port for each port or place of destination listed in the schedule.

The table also sets out the number of vessels and their total number of U.S. port calls (arrivals) for each vessel sub-population.

Vessels less than 300 gross tons making ports of call in the Seventh Coast Guard District have to file NOA reports with the COTP. The temporary rule maintained this requirement, and the estimate of the vessels and port calls presented in Table 1 accounted for this special group.

Before the temporary final rule, vessels had to file multiple NOA reports if they were visiting multiple U.S. ports on the same voyage. Under the temporary rule, vessels making calls to multiple U.S. ports do not have to file multiple NOA reports; rather, the temporary rule allows a single report listing all destinations in the United States along with estimated arrival dates for each port. The Coast Guard did not collect or maintain information on the number of vessels that made multiple U.S. port calls under separate NOA reports to estimate the number of consolidated reports under the temporary rule. The totals above, therefore, represent a conservative estimate, a “worst-case scenario,” of the numbers of vessels and NOA reports that will be affected by the temporary rule.

Finally, vessels that make scheduled trips outside of their COTP zones will no longer be exempt from reporting requirements. We do not know how many of these vessels and port calls exist, though we know they are included in the population of non-AMVER/non-Great Lakes vessels. For the purposes of analysis, these vessels and port calls are included in the non-AMVER/non-Great Lakes population.

Minimal burden will be imposed on vessels whose applicability to the NOA reporting requirements was upheld by the temporary rule because the cargo, crew, and passenger information they provide to the Coast Guard is already collected on a form submitted to the Immigration and Naturalization Services (INS) (INS form I-418). We assumed 10 minutes (0.167 hours) will be spent retrieving and transmitting the cargo, crew, and passenger information. We assumed that there will be a $2 transmittal fee (fax, email, telephone, etc.) to provide this information to the Coast Guard. We assumed that clerical labor will complete these tasks at a cost of $31.00 per hour (loaded labor rate, 2001). Based on 1998 and 1999 data, we estimated 63,286 port calls will be made over the time period of this rulemaking (12 months—until September 30, 2002). The summary of unit costs and total rulemaking costs for non-AMVER/non-Great Lakes vessels is presented in Table 2.

Vessels that were previously exempt from NOA requirements must now, as a result of the temporary rule, provide the Coast Guard with NOA reports in addition to providing the cargo, crew, and passenger information. These vessels (AMVER and vessels that transit only the Great Lakes) will incur the new cost of submitting an NOA report, since they did not have to submit this report in the past. Based on the OMB-approved Collection of Information for NOA (OMB-2115-0557), we estimated that it will take 10 minutes (0.167 hours) to complete the report, plus an additional 5 minutes (0.083 hours) for the general description of the cargo. We assumed that clerical labor will complete the report at a cost of $31.00 per hour. Additionally, these vessels will need to develop and submit the cargo, crew, and passenger information. Based on information from the INS (OMB-1115-0083), it will require 60 minutes (1.000 hour) to complete both lists, for a total of 75 minutes (1.250 hours) for the entire submission (NOA report, cargo description, crew and passenger information). There will be a $2 transmittal fee to provide the information to the Coast Guard. Based on 1998 and 1999 data, we estimated that 4,853 port calls will be made over the time period of this rulemaking. The summary of unit costs and total rulemaking costs for AMVER/Great Lakes vessels is presented in Table 3.

Finally, all vessels affected will need to communicate with the National Vessel Movement Center (NVMC) upon departure from a U.S. port when their next port of call is also a U.S. port. Vessels are to phone or fax the date of departure to the NVMC along with the name of the port just departed. The NVMC will transmit this information to the COTP in the next port of call. We assumed that reporting this will require 1 minute (0.017 hours) per departure and that clerical labor ($31.00 per hour) will make the call or send the fax. We assumed the transmittal fee will be $1.00 per call/fax. There will be an estimated 68,139 departures over the 12-month period of the temporary rule (until September 30, 2002). The cost and burden for notifying NVMC of the date of departure and last port of call is presented in Table 4.

This rule will ensure the timely receipt of advance information about vessels and people entering U.S. ports and will help minimize disruption to commerce. The additional information required by this temporary rule will increase security and provide protection for the nation's ports and waterways. There will be some savings from the consolidated NOA submission for two or more consecutive arrivals at U.S. ports.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule was not preceded by a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we have reviewed it for potential economic impact on small entities.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule modifies an existing collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Title: Advance Notice of Vessel Arrival and Departure.

OMB Control Number: 2115-0557.

Summary of the Collection of Information: The Coast Guard requires pre-arrival messages from any vessel entering a port or place in the United States. This rule will amend 33 CFR part 160 to temporarily require:

• Earlier receipt of the notice of arrival—96 hours instead of 24 hours—from vessels currently required to provide advance notification of arrival;

• Submission of NOA reports to a central clearinghouse, the National Vessel Movement Center;

• Suspension of the current exemption from notice of arrival reporting requirements for vessels operating in compliance with the Automated Mutual Assistance Vessel Rescue System, some vessels operating on the Great Lakes, and vessels on scheduled routes; and

• Additional information about crewmembers, passengers, cargoes on board the vessel to be provided as items in the notice of arrival report.

The temporary changes will be in effect until September 30, 2002.

Need for Information: To ensure port safety and security and to ensure the uninterrupted flow of commerce, the Coast Guard must temporarily change regulations relating to the Notifications of Arrival requirements.

Proposed Use of Information: This information is required to control vessel traffic, develop contingency plans, and enforce regulations.

Description of the Respondents: The respondents are owners, agents, masters, operators, or persons in charge of vessels bound for or departing from U.S. ports.

Number of Respondents: The existing OMB-approved collection number of respondents is 9,834. This temporary rule will increase the number of respondents by 533 to a total of 10,367.

Frequency of Response: The existing OMB-approved collection annual number of responses is 126,722. This temporary rule will increase the number of responses by 9,556 to a total of 136,278.

Burden of Response: The existing OMB-approved collection burden of response is 10 minutes (0.167 hours). This temporary rule will increase the burden of response by 5 minutes (0.083 hours) to a total of 15 minutes (0.250 hours).

Estimate of Total Annual Burden: The existing OMB-approved collection total annual burden is 21,288 hours. This temporary rule will increase the total annual burden by 17,749 hours to a total of 39,037 hours.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we submitted a copy of this rule to the Office of Management and Budget (OMB) for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request. We received OMB approval for the collection of information on September 26, 2001. It is valid until September 30, 2002.

We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES , by the date under DATES.

You need not respond to a collection of information unless it displays a currently valid control number from OMB. We received OMB approval for the collection of information on September 26, 2001. It is valid until September 30, 2002.

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, the effects of this rule are discussed elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(a), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This temporary final rule changes the requirements established in the notification of arrival regulations. They are procedural in nature and therefore are categorically excluded. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

The Coast Guard issued an interim final rule, effective June 20, 2001, that was published in the Federal Register (66 FR 35758, July 9, 2001). We are removing that interim final rule.

Under 5 U.S.C. 553(d)(3), we find that good cause exists to make this rule effective less than 30 days after publication in the Federal Register . This rule removes security zones that are no longer needed because of other regulatory changes designed to provide adequate security for U.S. Naval Submarine Base Bangor and submarines.

The Coast Guard established a fixed security zone around Naval Submarine Base Bangor, WA, and moving security zones around Naval submarines while underway on Puget Sound, and the Strait of Juan De Fuca, WA and adjoining waters because we determined it was necessary to prevent access to these areas in order to safeguard this U.S. Naval base and submarines from sabotage, other subversive acts, or accidents, and otherwise protect U.S. Naval assets vital to national security. Events such as the bombing of the USS COLE highlight the fact that there were hostile entities operating with the intent to harm U.S. national security by attacking or sabotaging Naval assets including those in Puget Sound. The events of September 11, 2001, demonstrated that there were real, credible, and immediate threats.

The Coast Guard, through our interim final rule, assisted the U.S. Navy in protecting vital national security assets by establishing security zones to exclude persons and vessels from the immediate vicinity of U.S. Naval Submarine Base Bangor and submarines. Entry into these zones was prohibited unless authorized by the Captain of the Port or his designee. These security zones are patrolled and enforced by Coast Guard and Navy personnel.

These zones are not needed after June 20, 2002 because regulatory changes, designed to provide adequate security for U.S. Naval Submarine Base Bangor and submarines, will be in effect by June 20, 2002. In particular, the Protection of Naval Vessels rule issued under the authority in 14 U.S.C. 91 immediately following the September 11, 2001 attacks (66 FR 48780, September 21, 2001; and 66 FR 48782, September 21, 2001) will provide protective measures for both vessels and bases. Additionally, the Army Corps of Engineers will also be providing a Naval Restricted Area around Submarine Base, Bangor, Washington. As a result this interim rule is no longer needed, and the Coast Guard is withdrawing the interim rule and closing this rulemaking docket.

The Coast Guard received 15 responses to the interim final rule. The paragraphs in this section discuss the comments we received and provide the Coast Guard's response. The Coast Guard is not making any changes to the rule based on the comments. Instead, the interim final rule is being withdrawn because other protective measures make the rule unnecessary.

General comments are discussed first, followed by comments on specific sections of the regulations.

Five comments expressed support for the expanding of the security zone around the Naval Subase Bangor and the mobile security zones around submarines in order to protect them from sabotage, other subversive acts, or accidents. In addition, these responses contained issues that were outside the scope of this regulation.

One comment in favor of the security zone also stated that just because there is not a specific threat we should still act as prudent military commanders and extend security zones despite what intelligence agencies know but cannot share with the public in detail.

Two comments stated that, due to recent terrorist attacks on the United States military, we as a country should ensure the safety of the military.

One comment from a boater agreed with the security zone and stated that the security zone in no way will hinder navigation in the Puget Sound area.

One commenter in support of the security zone stated that, because he was a taxpayer, the submarines belonged to him and that the Coast Guard and Navy should use all appropriate means to protect them from enemy attack.

Four comments opposed the expedited implementation of this regulation and requested public hearings. Some of these expressed concern that the public was not allowed to ask questions and voice their concerns on the expanding of the security zone. In light of the threat and vulnerability concerns for naval installations and vessels, as highlighted by the terrorist attack on the USS Cole, the Navy and Coast Guard decided that a security zone around the subase and submarines was needed immediately. Following the terrorist attack on the World Trade Centers in New York and the Pentagon in Washington, D.C., the security zones have proven to be an appropriate necessity.

Three comments suggested that the security zones would hinder peaceful marine protesting of the nuclear submarines and the submarine base. This rule does not prevent people from engaging in constitutionally-protected expression. People are still able to peacefully protest outside the security zones. The zones are designed to protect Navy assets to the maximum extent possible without unreasonably impacting the right to free speech.

One comment mentioned that protection of civilian marine traffic during a terrorist attack on a submarine is not addressed in the interim final ruling. This comment is outside the scope of this rulemaking.

Four comments suggested other ways the Navy could increase security for its submarines and the subase. These suggestions were not practical due to the inherent dangers involved in submarine navigation and/or would create added unnecessary burdens.

Two comments expressed concern over automobile traffic being impeded on the Hood Canal Bridge. These comments are outside the scope of this regulation.

Three comments questioned what and whether there is a credible threat to U.S. submarines. It would be contrary to the public interest to disclose the exact nature of the threats to U.S. Naval assets, as this information is highly classified, and if divulged would greatly damage U.S. intelligence sources and security postures. The terrorist attacks of September 11, 2001 have proven that there are very credible threats to our nation and its capability to conduct war.

One comment questioned if a bomb threat on one of the submarines in May 2000 was one of the reasons for the security zone. This comment is out of the scope of this regulation.

One comment questioned if a November 2000 arrest for sabotage of a Navy Petty Officer assigned to a submarine was one of the reasons for the security zone. This comment is out of the scope of this regulation.

Three comments discussed protesters being unable to enter Elliot Bay while a nuclear submarine was moored there in August 2000 for Sea Fair festivities. These comments are out of the scope of this regulation.

One comment questioned if there is a similar security zone for Trident Submarines and the subase at Kings Bay, Georgia. That base has different geographical parameters than Puget Sound, and does not serve as a good comparison.

One comment suggested that the number of times a Trident Submarine passes through the Strait of Juan De Fuca and Hood Canal should be estimated in order to determine if the distances established by the zones will still permit adequate freedom of movement on the waterways. Due to the required secrecy of Trident submarine movements, the number of submarine passages cannot be made public.

One comment questioned if the Indian Tribal Governments had been contacted. The commenter stated it was not reasonable to expect Indian Tribes to review the Federal Register in order to comment on the impact to their tribes. The Coast Guard is required to consult Indian Tribes for rules that would have a significant impact on Tribal activities. The interim final rule did not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian tribal governments, because it did not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. As a result, the Indian Tribes were not consulted on the interim final rule.

One comment questioned why the environmental impact was left off the interim final ruling. The Coast Guard was not required to prepare environmental documentation prior to issuing the interim final rule, but has subsequently done so.

One comment suggested that the regulation would have an impact on commercial and civilian navigation. Since the interim regulation has been in affect, there has only been minimal impact on recreational and commercial navigation. This rule is being withdrawn so it will no longer have any impact on recreational or commercial navigation.

One comment questioned what response the Coast Guard or Navy would give to an infraction of the security zone. Specific Coast Guard enforcement actions depend on the circumstances of each case, and can, in accordance with policy, range from education and verbal warnings up to the maximum penalties provided by law. The Coast Guard and Navy will take all legally appropriate and necessary law enforcement measures to ensure compliance with the zone.

Four comments opposed the expedited implementation of this regulation and requested public hearings. Some of these expressed concern that the public was not allowed to ask questions and voice their concerns on the establishment of the security zones. The Coast Guard did not hold public hearings prior to the rulemaking because good cause existed to make the rule effective sooner than the normal rulemaking process would allow, as discussed in the interim final rule. The Coast Guard was also available to answer any questions posed by the public.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This expectation is based on the fact that the regulated areas established by the interim final rule are being cancelled For the above reason, the Coast Guard does not anticipate any significant economic impact.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This final rule will not affect any small entities. Because the impacts of this final rule are expected to be minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this rule will not have a significant economic impact on a substantial number of small entities.

If you believe that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you believe it qualifies and how and to what degree this final rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the final rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the ( FOR FURTHER INFORMATION CONTACT ) section.

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This final rule would not impose an unfunded mandate.

This final rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This final rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian tribal governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lC, this final rule is categorically excluded from further environmental documentation. A Categorical Exclusion is provided for security zones. A Categorical Exclusion Determination and an Environmental Analysis Checklist are available in the docket at the location specified under the ADDRESSES portion of this rulemaking.

On January 29, 2002, we published a notice of proposed rulemaking (NPRM) for this regulation in the Federal Register (67 FR 4218). The comment period for that NPRM expired on April 15, 2002. The Coast Guard is now proceeding to implement a final rule taking into account all comments received.

Good cause exists for making this regulation effective in less than 30 days after publication in the Federal Register . Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest. Based upon comments received and evaluations of the proposed rulemaking and the hardships it threatened to impose on local waterway users, the zones have been reduced to less than one half of their original sizes in this final rule. As discussed below, the new zone descriptions will allow waterway users access to much more area than the previously proposed zones while still providing adequate protection to the Plant.

The public has been dealing with larger zones since September 2002, and has been anticipating the implementation of a final rule to coincide with the expiration on June 15, 2002 of current temporary safety and security zones around the Plant. Their comments indicate they want safety and security zones around the plant, but want smaller boundaries.

It is necessary for this zone to come into effect on June 16, 2002 to ensure there is no gap between its implementation and the expiration of the temporary safety and security zones published January 14, 2002 currently in effect around the Plant (67 FR 1607). If a gap between rulemakings occurs, the Coast Guard will have no viable enforcement options around the Plant waterfront during this period.

Because this final rule significantly decreases the impact on the public by implementing smaller zones, and because of the need to ensure there is no gap between the expiration of temporary safety and security zones published in January (67 FR 1607) that expire on June 15, 2002, and the implementation of this rulemaking, it is necessary for this regulation to become effective on June 16, 2002 in the interest of public safety and security. The public will still have substantial advance notice of this final rule before it becomes effective.

In light of terrorist attacks on New York City and Washington D.C. on September 11, 2001, safety and security zones are being established to safeguard the Pilgrim Nuclear Power Plant, persons at the facility, the public and surrounding communities from sabotage or other subversive acts, accidents, or other events of a similar nature. The Pilgrim Nuclear Power Plant presents a possible target of terrorist attack, due to the potential catastrophic impact nuclear radiation would have on the surrounding area, its large destructive potential if struck, and its proximity to a population center. These safety and security zones prohibit entry into or movement within the specified areas.

This rulemaking establishes security and safety zones having identical boundaries delineated as follows: all waters of Cape Cod Bay and land adjacent to those waters enclosed by a line beginning at position 41°57′5″ N, 070°34′42″ W; then running southeast to position 41°56′42″ N, 070°41′6″ W; then running southwest to position 41°56′30″ N, 070°34′21″ W; then running northwest to position 41°56′51″ N, 070°34′55″ W; then running northeast back to position 41°57′5″ N, 070°34′42″ W.

No person or vessel may enter or remain in the prescribed safety and security zones at any time without the permission of the Captain of the Port. Each person or vessel in a safety and security zone shall obey any direction or order of the Captain of the Port or designated Coast Guard representative on-scene. The Captain of the Port may take possession and control of any vessel in a security zone and/or remove any person, vessel, article or thing from a security zone. No person may board, take or place any article or thing on board any vessel or waterfront facility in a security zone without permission of the Captain of the Port. These regulations are issued under authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.

Any violation of any safety or security zone described herein, is punishable by, among others, civil penalties (not to exceed $25,000 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 10 years and a fine of not more than $100,000), in rem liability against the offending vessel, and license sanctions.

The Coast Guard received 23 oral comments at one public meeting and 17 written comments during the comment period for the NPRM. All comments received were considered in the development of this final rule. Changes implemented in the final rule are the result of inter-Coast Guard evaluations of how to better employ and enforce the regulation and comments and recommendations of stakeholders in the COTP Boston zone. These stakeholders include the maritime industry, commercial and recreational fishermen, the maritime law community, and local townspeople.

As a result of the comments, review, and public recommendations the zones' delineation will change from the following: all waters of Cape Cod Bay and land adjacent to those waters enclosed by a line beginning at position 41°57′30″ N, 070°34′36″ W; then running southeast to position 41°56′36″ N, 070°33′30″ W; then running southwest to position 41°56′28″ N, 070°34′38″ W; then running northwest to position 41°56′50″ N, 070°34′58″ W; then running northeast back to position 41°57′30″ N, 070°34′36″ W; to the following revised coordinates: all waters of Cape Cod Bay and land adjacent to those waters enclosed by a line beginning at position 41°57′5″ N, 070°34′42″ W; then running southeast to position 41°56′40.5″ N, 070°34′4.5″ W; then running southwest to position 41°56′32″ N, 070°34′14″ W; then running northwest to position 41°56′55.5″ N, 070°34′52″ W; then running northeast back to position 41°57′5″ N, 070°34′42″ W.

These changes remove the majority of the Rocky Point shoal area and all of the White Horse Rocks area from the zones, and reduce the approximate size of the zones by more than half. The specific comment topics and resultant changes (if any) are addressed below.

The Coast Guard received comments from both the public and Pilgrim Nuclear Power Plant advocating smaller zones. Pilgrim Nuclear Power Plant conducted evaluations based upon Nuclear Regulatory Commission data and concluded that zones approximately 500 yards offshore from the plant would provide adequate protection against waterside threats. Based upon this evaluation and the hardships (as outlined below) the proposed zones threatened to impose on local waterway users, the zones have been reduced in size as described above in this discussion of comments and inthe Background and Purpose section.

Many comments related concerns that the proposed zones' boundaries would exclude lobstermen from highly productive lobstering areas, namely the White Horse Rocks and the Rocky Point shoal areas. At the time the NPRM was issued the Coast Guard was still investigating the potential impacts of the zones on the commercial fishing community. Upon consulting with local and state lobsterman officials as well as the Massachusetts Division of Marine Fisheries, it was determined that a significant amount of the lobster landings for Plymouth, MA, come from these areas and a significant amount of lobstermen depend upon those areas for their livelihoods. The revised and reduced boundaries, as supported by the studies conducted by the Pilgrim Plant and Nuclear Regulatory Commission, will allow the lobstermen to fish the vast majority of the highly productive lobstering areas from which they would have been originally excluded. A small portion of Rocky Point shoal area must remain inside the revised boundaries due to its proximity to the Pilgrim Plant.

Some comments raised concerns regarding the extent of the proposed zones' boundaries, and that they might extend over public beaches, property, and boat ramps. The boundaries of the zones (both proposed and revised) at no time extended over any public beaches, private property, or public or private boat ramps outside Pilgrim Nuclear Power Plant property. As a result, we made no changes in response to these comments.

Many comments stated concerns that proposed zones extended far enough offshore that it would force recreational boats to go around White Horse Rocks to transit to and from Priscilla Beach. They stated this could be dangerous in the instance boats needed to quickly return to shore due to a storm. The revised boundaries will allow recreational boaters to safely utilize their desired transit path between the zones and the White Horse Rocks area.

A few comments requested extension of the comment period and additional public meetings. The comment period for the proposed rule was nearly 3 months long and numerous comments from Priscilla Beach residents were received. A public meeting was held with 87 participants, some of whom were Priscilla Beach residents. Due to the fact that the zones will not encompass any of Priscilla Beach, its adjacent private property, or the surrounding public and private boat ramps, and the fact that impacts on recreational boat transits to and from the beach will be negligible under the revised boundaries, the Coast Guard did not extend the comment period or schedule another public meeting.

In addition, lobstermen wished to have a separate meeting with the Coast Guard to determine the potential income loss they might experience due to the implementation of the zones. It was determined at the February 6, 2002 public meeting that the comment submission process provided a better avenue to document and address these issues, since lobstermen could easily determine their incomes and potential losses on their own without Coast Guard aid. All lobstermen who felt their livelihoods might be impacted by the zones were asked to submit comments supporting these claims during the comment period. The Coast Guard received four comments specifically detailing potential economic losses and the amount of lobstermen who would be impacted by the proposal.

Many comments were from local mariners convinced that the zones are not necessary because the local mariners know each other in the vicinity of the plant, and would notice anything or anyone out of the ordinary. While the Coast Guard appreciates reports of suspicious activity from the public, such a public “neighborhood watch” group would not serve the same purpose, nor offer the same protection, as the safety and security zones. Local mariners cannot prevent potential terrorists from entering the area, they cannot board suspicious vessels, and they cannot remove suspicious persons or vessels from the area, and thus cannot be used in place of these safety and security zones.

Some comments advocated a system to allow mariners to check in and out of the zones. Many systems were proposed including coded gates, tracking devices, and special identification and call in procedures, among others. A check-in procedure was established for the small number of commercial lobstermen whose livelihoods were effected by the temporary zones around the Plant. However, we feel such a system would be unpractical for recreational boats due to their large numbers. In addition, the need for any such system at this time is unnecessary considering the new boundaries of the zones, which will allow mariners to fish and transit within approximately 500 yards of the plant.

Some comments stated that markers to delineate the zones were essential. Others stated they did not want markers that would cause too much noise or be lit too brightly (such as buoys). The purpose of this regulation is solely to establish zones, it will not be used to mandate marking systems for the zones. However, the Coast Guard has determined marking of the zones may be beneficial and, along with the Pilgrim Power Plant, is considering whether to permit marking the zones with private aids to navigation. Markings placed, if any, will be certified by the First Coast Guard District Aids to Navigation Office, and their lights and sounds will not negatively impact communities on nearby Priscilla Beach.

Some comments sought the establishment of additional defense systems including physical barriers and anti-aircraft systems. The Coast Guard is currently in consultation with the Plant on static enforcement measures. However, it is beyond the scope of this rulemaking to address landside and air security improvements, or specify enforcement techniques. Thus, no action will be taken on comments within these categories.

Some comments sought information on the enforcement of the zones. Coast Guard cutters, small boats, and air assets will enforce the zones with the assistance of others, including but not limited to, Massachusetts State Police and Environmental Police, and local harbormasters. In addition, Pilgrim Plant security will report any suspicious activity immediately to the Coast Guard.

Patrolling of the zones will be varied. Patrol schedules are a matter of agency discretion and will not be divulged to the public in advance. Violators of the zones will be subject to all provisions of applicable law and at a minimum will be escorted out of the zones by the Coast Guard or representative on scene. Depending on the circumstances, zone violators may receive any penalty up to the maximum penalties prescribed under the Background and Purpose section.

Some comments sought information on what types of vessels could damage the plant. Potentially any vessel or person that could get inside these zones could damage the Pilgrim Nuclear Power Plant. This is why these zones are needed to prevent people and vessels from approaching the plant waterfront, and access to the zones will not be allowed without COTP Boston, MA approval.

Some comments expressed concerns that the size of the proposed zones would force small recreational boats far offshore as they transited around it, posing a danger even in moderate weather. The revised boundaries of the zones will allow mariners to use traditionally available routes and transit much closer to shore as they pass across the front of the plant, as close as approximately 500 yards.

Some comments expressed concerns that local and state law enforcement assisting the Coast Guard might misinterpret the boundaries of the zones or not uniformly enforce them. The Coast Guard has a long history of working with local and state authorities in the enforcement of safety and security zones. The public can be certain that any agency assisting the Coast Guard will appropriately enforce the boundaries of the zones.

Some comments sought information on how fishermen could retrieve gear that happened to drift into the zones, or what would happen to a vessel if it were accidentally forced into the zones by bad weather. The Coast Guard understands that accidental or unforeseen situations sometimes arise. The Coast Guard will make allowances for vessels to enter the zones to retrieve gear, and will not typically take enforcement action against vessels forced into the zones by inclement weather, except to remove them from the zones. In all cases, it is expected that mariners who have a legitimate need to enter the zones will request permission in advance of entering.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this rule to be minimal enough that a full regulatory evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. The effect of this regulation will not be significant because there is ample room for vessels to navigate around the zones in Cape Cod Bay, and due to the reasons enumerated under the Discussion of Comments section.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit, fish, or anchor in a portion of Cape Cod Bay. For the reasons enumerated in the Discussion of Comments section above, these safety and security zones will not have a significant economic impact on a substantial number of small entities.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If your small business or organization would be affected by this final rule and you have questions concerning its provisions or options for compliance, please call Lieutenant Dave Sherry, Marine Safety Office Boston, at (617) 223-3000.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

The Coast Guard analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not pose an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Final details for the event, including the racetrack coordinates and event dates and times, were not provided to the Coast Guard in time to draft and publish an NPRM or a final rule 30 days in advance of its effective date. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to ensure the safety of the participant vessels, their crew, and spectators.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The precise location of the event necessitating the promulgation of this safety zone and other logistical details surrounding the event were not finalized until a date fewer than 30 days prior to the event. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to ensure the safety of the participant vessels and their crew.

The Second Annual Long Beach Offshore Gran Prix powerboat race is scheduled to be held from 12 p.m. to 3 p.m. (PDT) on June 2, 2002. This safety zone is needed to provide for the safety of both the contestants and the estimated 100 spectator vessels expected to attend this event. This new rule differs slightly from last year's rule in three ways. First, the date of this year's event is 15 days earlier than last year's event. Second, at the request of the local pilot organization, the location of the racecourse was adjusted to the North slightly to encompass less of the commercial anchorage grounds in the Port of Long Beach. Finally, the location of the racecourse was adjusted to the East slightly to allow for a wider traffic fairway for non-participants transiting between the Long Beach downtown marinas and Long Beach gate.

The Coast Guard is establishing a safety zone within the navigable waters of Long Beach Outer Harbor around the offshore oil islands. The area of the safety zone will commence at latitude 33°45′46″ N, longitude 118°10′11″ W; thence proceed to 33°44′48″ N, 118°11′03″ W; thence to 33°43′50″ N, 118°10′08″ W; thence to 33°43′50″ N, 118°08′06″ W; thence to 33°44′56″ N, 118°07′40″ W; thence returning westerly along the shore to the point of origin. [NAD 1983] This safety zone allows for a fairway from the Long Beach downtown marina to Long Beach Gate, and will allow vessels to transit from Alamitos Bay east of the racecourse.

Persons and vessels are prohibited from entering into or transiting through this safety zone unless authorized by the Captain of the Port. By prohibiting all vessel traffic from entering the waters surrounding the racecourse, the risk of high-speed collision will be greatly reduced. U.S. Coast Guard personnel will enforce this safety zone with assistance from the Coast Guard Auxiliary and the Long Beach Gran Prix event staff.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

Since the rule will be in effect for only a short duration, during the time of the Gran Prix event, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10 (e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

We expect this rule will not affect small entities. This rule is closing a small portion of the waterway only for a limited period of time. The rule provides for a fairway from the Long Beach downtown marina to Long Beach Gate, and allows vessels to transit to and from Alamitos Bay east of the racecourse.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are establishing a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

In rule FR Doc. 02-3677, published on February 14, 2002 (67 FR 6872), make the following correction:

The vicuña ( Vicugna vicugna ) was listed as endangered under the U.S. Endangered Species Act on June 2, 1970. Among other things, that listing prohibited U.S. interstate and international commerce in vicuña products. The vicuña was included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) on July 1, 1975 (the date of entry into force of CITES), which thereby prohibited all primarily commercial, international trade in vicuña products. Certain populations of vicuña in Chile and Peru were transferred to CITES Appendix II at the sixth meeting of the Conference of the Parties to CITES (COP6) in 1987. The remaining vicuña populations of Peru were transferred to Appendix II in 1994 at the ninth meeting of the Conference of the Parties (COP9), and certain populations in Argentina and Bolivia were transferred to Appendix II in 1997 at the tenth meeting of the Conference of the Parties (COP10). These transfers to Appendix II, reflecting improved conservation status for the specified vicuña populations, allowed the resumption of commercial, international trade—under carefully controlled conditions—of vicuña fiber and products manufactured from vicuña fiber. This international trade, however, is still excluded from the United States, because of the species' listing as endangered under the ESA, a stricter domestic measure than CITES. The United States supported the above transfers of the specified vicuña populations to Appendix II, based on information contained in the supporting statements for the various CITES amendment proposals. The relevant CITES amendment proposals and their supporting statements are available on request from the Division of Scientific Authority (see ADDRESSES Section).

The vicuña produces a fiber of very fine texture (about 12 microns in diameter) that can be woven into luxury garments. Raw fiber from vicuña has been legally auctioned at up to US $500 per kg (US $200 per lb) and an average vicuña fleece provides about 0.2 kg (0.5 lbs) of fiber. Individual vicuña thus have a fleece that is worth many times that of a sheep and several times that of other species in the family Camelidae, such as alpacas and llamas. This high value, in a resource-poor area, can represent both a threat to the species and an opportunity for economic development and sustainable management. The threat comes from illegal hunting if protection and incentives for management are poor. The opportunity exists if proceeds from the sale of vicuña fiber from live-shorn animals are substantially used to conserve and protect vicuña by enhancing the economic well-being of native people in the Andean highlands, and by linking that improved economic status directly to conservation and sustainable use of the vicuña, and recovery of vicuña populations.

We received a petition on October 5, 1995, from the President of the International Vicuña Consortium, an association of companies in the fiber industry, requesting that the vicuña be removed from the U.S. list of endangered and threatened wildlife, or reclassified with a special rule that would allow for commercial trade that would benefit the conservation of the species. The petitioners cited the following reasons for the requested action: (1) Improved management of vicuña populations, (2) improved enforcement and trade controls, and (3) recognition that regulated commerce could be beneficial to both rural communities that share landscapes with vicuñas and the vicuñas themselves. The petitioners provided limited supporting documentation.

Our 90-day finding on whether the petition presents substantial information and our 12-month finding on whether the petitioned action is warranted were subsumed within the proposed rule, which was published in the Federal Register on September 8, 1999 (64 FR 48743). In the proposed rule we found that: (1) Reclassification of the vicuña from endangered to threatened was warranted for all range countries except Ecuador; and (2) that a special rule (also referred to as a 4(d) rule) was warranted for all threatened, Appendix II populations, with the exception of the Appendix II “semi-captive” populations of Catamarca, Jujuy, La Rioja, Salta, and San Juan Provinces in Argentina, which were specifically excluded until such time as their conservation benefit for wild vicuña was demonstrated adequately.

We based our findings and the proposed rule on information provided in the petition, the supporting statements for the aforementioned CITES amendment proposals, other published literature and articles, and the Service's status review of the vicuña. This status review included interviews with knowledgeable persons from the vicuña range countries, responses to questions asked of authorities in each range country, and a 1997 on-site assessment of vicuña populations and management in Argentina, Bolivia, Chile and Peru, which was prepared by a contractor (Dr. Henry L. Short) working for the National Fish and Wildlife Foundation (NFWF). The Service contracted with NFWF to evaluate the conservation and management status of vicuña populations, and to make recommendations about the species' status. All personal communications and question responses cited in the text of the final rule were received by Dr. Short, unless otherwise noted (see “References Cited” section).

Through information obtained during the public comment period, we have learned that the “semi-captive” populations of Argentina are actually populations of semi-domestic vicuña that are maintained in fully-fenced enclosures of a few hectares (ha). Peru also has “semi-captive” populations, but they differ from those of Argentina in being populations of wild vicuña maintained in fully-fenced enclosures of up to 1,000 ha. Chile may soon begin establishing “semi-captive” populations similar to those in Argentina, but perhaps in slightly larger enclosures. Hereafter in this document we refer to all of these fenced populations as “captive” populations or “captive” herds, and to this type of management as a “captive” management system, operation, or program. This will distinguish them from “wild, free-ranging” populations or herds, and “wild, free-ranging” management systems, operations, or programs.

The formal public comment period on the proposed rule closed on December 7, 1999. Much additional information was contained in the 85 comments we received during the public comment period. Comments pertaining exclusively or primarily to vicuña in a single range country are summarized below under each country. Comments of a more general nature or pertaining to vicuña in more than one range country are summarized immediately below.

Comment: The Cashmere and Camel Hair Manufacturers Institute (Mr. Karl Spilhaus), Loro Piana, N.Y. (Mr. Pier L. Guerci), Northern Textile Association (Mr. Karl Spilhaus), and Warren Corporation (Mr. Roberto Modica), wrote in support of reclassification of the vicuña populations of Argentina, Bolivia, Chile, and Peru from endangered to threatened. Their principal argument is that opening of the U.S. market will create a powerful economic incentive for sustainable management and conservation of vicuña populations in the areas covered by the proposed reclassification.

Response: While we agree that opening of the U.S. market may create an economic incentive, we are also aware that such incentive can be either a positive force or a negative force for conservation of vicuña in the wild. The ESA requires that we ensure, to the best of our ability, that it be a positive force for conservation. We agree that the vicuña can and should be used sustainably. Any decision on downlisting a species from endangered to threatened must be primarily based on the biological status of the species in the wild, and the five listing factors in the Act.

Comment: Dr. Henry L. Short and Mr. Joseph Ramos provided specific comments on various aspects of the proposed rule and proposed special rule. Dr. Short stated that the Service erred in considering vicuña populations in Argentina, Bolivia, Chile, and Peru to be threatened until they are fully recovered, because we did not define “fully recovered population” and any range state should have the right to determine the population level that they wish to achieve and sustain. Dr. Short also objected to excluding the captive populations of Argentina from the special rule; he believes that the captive management operations are advantageous to wild vicuña populations. Finally, Dr. Short felt that the Service should exercise restraint when demanding information from and making management recommendations to range countries. The Service should only request information that is necessary for making a determination under the ESA. Most of Mr. Ramos's comments were similar to those of Dr. Short, but he also commented on protection and management of the vicuña, and about possible disease transmission.

Response: We agree with Dr. Short and Mr. Ramos that we did not define “fully recovered population.” However, if any of the range countries have set recovery goals for vicuña populations, we are not aware of it, nor were any such recovery goals provided to us during the comment period. Our use of the term “fully recovered” was meant in the context of ESA standards for determining if a species is threatened or endangered, not in the context of its recovery to historical population levels or its satisfying range country recovery goals. Although any range state has the right to determine the population level they wish to achieve and sustain, we have an obligation under the ESA to determine if that population qualifies for threatened or endangered status in terms of the five ESA listing factors.

Section 4(d) of the Act requires that a prohibited activity, such as the import of fiber or fiber products from a threatened vicuña population, have a demonstrable conservation benefit before it is allowed under a special rule. When we published the proposed rule (reclassification) and proposed special rule, we felt that available information was inadequate to determine that the captive vicuña populations in Argentina were contributing to conservation of wild vicuña populations. Therefore, these populations were excluded from the proposed special rule, but with an appeal for additional information that would assist us in making our final determination. Likewise, we are always trying to obtain the best information available in regard to the five listing factors specified in the Act. That is why the proposed rule included a request for any additional information that range countries could provide on habitat, vicuña population numbers and utilization, disease and predation, existing regulatory mechanisms, and other factors. We base our decision here on the best available scientific information. We note that detailed information has been received from South American biologists with extensive expertise on this species. Based on this additional information, captive populations in Argentina have been included in the final rule.

Comment: Dr. Paul J. Taylor supported the proposed reclassification, but had a number of specific comments. Dr. Taylor agreed with the previous two commenters in stating that the Service had erred in excluding the captive vicuña populations of Argentina. He believes the Service has adopted unreasonable criteria in judging Argentina's vicuña policies. He also believes it is unreasonable to expect that the conservation benefits of Argentina's management system must be proved. Dr. Taylor feels that vicuña are “not as wild as most wild species,” and believes that the time is coming when commercial vicuña ranching in many countries of the world will co-exist with effective continuing conservation of wild vicuña populations in their historic range. Finally, Dr. Taylor discussed the possibilities of embryo transfer from vicuña into llamas as a tool that could dramatically increase the number of vicuña in managed populations. He feels that frozen vicuña embryos can and should provide a safe way of creating vicuña herds in parts of the world where they have never existed.

Response: We believe that we have adopted reasonable criteria in evaluating the status of vicuña populations. We are not endorsing range countries' policies, but, rather, we are evaluating the status of populations in those countries. The ESA requires that a special rule be promulgated only if it is “necessary and advisable for the conservation of the species.” Thus, a special rule that allows international commercial trade must have demonstrated conservation benefits; it is not sufficient for a special rule to be neutral in terms of its impact on conservation or to only have potential benefits. We consider the vicuña to be a wild species in every sense. We are aware that the species was domesticated in the past, resulting in the domestic alpaca (Jane Wheeler, IVITA, Facultad de Medicina Veterinaria, Universidad Nacional Mayor de San Marcos, Lima, Peru, pers. comm. with K. Johnson, Division of Scientific Authority (DSA), 2000), and does not need to be domesticated again. We do not support or advocate the development of commercial ranching operations for vicuña, especially ranching operations outside the species' natural range. We find that such operations would undermine the conservation efforts of range countries to sustainably utilize this species. Likewise, the special rule does not provide for the importation without an ESA permit of live vicuña, or of embryos, gametes, or tissue samples of vicuña. We do not intend to encourage such imports as a means for establishing populations outside the species' natural range, because of our concern that such populations could undermine range country conservation efforts and preclude any benefits to local indigenous communities. For those reasons, and the fact that they are still in Appendix I of CITES, the special rule precludes imports without a threatened species permit for live vicuña, and for embryos, gametes, and tissue samples of vicuña.

Comment: Dr. Bill Jordan of Care for the Wild wrote that trying to farm vicuña cannot succeed because they do not thrive at a lower altitude.

Response: Dr. Jordan's comment is duly noted.

Approximately 60 comments received in response to the proposed rule pertained exclusively or primarily to vicuña in Argentina.

Comment: The Government of Argentina (Victoria Lichtschein, Directora de Fauna y Flora Silvestres, Secretaria de Recursos Naturales y Desarrollo Sustentable) expressed the view that the draft proposed rule goes beyond the provisions of CITES for species included in Appendix I. It is not a presently accepted condition for the transfer of a species from Appendix I to II to demonstrate that such transfer will benefit the wild populations of that species. Rather, it must be demonstrated that the proposed use will not harm the wild species. Argentina noted that it would be practically impossible to demonstrate that breeding operations in Europe or the United States have any benefit for the wild populations of the species. Argentina also expressed the opinion that it would be virtually impossible, due to cost and complexity of the task, to determine if decreases in grazing by domestic livestock were having a beneficial effect on wild vicuña populations. Argentina is also implementing an Action Plan for the Fight Against Desertification, and these activities should be kept in mind when evaluating Argentina's efforts to improve the habitat of the vicuña. Argentina stated that, in general terms, the utilization of the species and the high value of the products that may be obtained from it no doubt constitute an incentive for the species' conservation. This concept, which is the basis of sustainable utilization, may be demonstrated reliably only through monitoring the wild populations, which are plainly on the increase.

Response: We appreciate Argentina's detailed commentary on our proposed rule, but we must emphasize that the proposal involves the vicuña's listing under the ESA and not CITES. An endangered listing under the ESA is not equivalent to an Appendix I listing under CITES, nor is a threatened listing under the ESA equivalent to a CITES Appendix II listing. The U.S. List of Endangered and Threatened Wildlife is not equivalent to CITES Appendices I and II. CITES is an international convention, while the ESA is domestic legislation. Each has its own set of implementing regulations within the United States, as well as criteria for listing. The ESA has many provisions that are stricter than CITES, thus it is considered a “stricter domestic measure” allowable under provisions of Article XIV of CITES. Threatened species are generally covered by all prohibitions applicable to endangered species under section 4(d) of the Act (see discussion in “Available Conservation Measures” section). We may promulgate special rules if the activities allowed therein are deemed necessary and advisable to provide for the conservation of the species. Furthermore, under CITES, the criteria for transferring species from Appendix I to II require far more information than a finding of non-detriment. The non-detriment finding is required for export of CITES Appendix II species; the listing criteria are more detailed (and can be found in CITES Resolution Conf. 9.24).

We do not believe that the information we requested to address conservation is too difficult or too costly to obtain. In the proposed rule and other correspondence, we have specifically mentioned a number of possible indicators of conservation benefit, including: (a) A reduction in poaching of wild vicuña in areas with captive vicuña populations; (b) improvement in habitat conditions as a result of decreased domestic livestock numbers in areas with captive populations; (c) documented decreases in the number of domestic livestock in the immediate vicinity of captive populations; and (d) whether some of the funds generated by the sale of fiber from captive vicuñas are allocated to conservation programs for wild vicuñas. Any of these indicators could be useful in demonstrating consistency with the conservation purposes of the ESA. Some of the indicators we have mentioned are basic, and the relevant information could be obtained with minimal effort.

We have considered Argentina's anti-desertification efforts in development of the final rule.

Comment: The Comision Regional de las Provincias Vicuneras provided five specific comments on the proposed rule and proposed special rule. First, the Comision stated, captive management diminishes poaching pressure for fiber, and could meet the demand for fiber for craft use for an important sector of the population of the vicuña provinces. The vicuña provinces, which have a great craft tradition, see captive management as an important alternative for obtaining fiber that can later be exported to a country where demand is high, such as the United States. Captive management allows the majority of the wild vicuña population to remain in a wild state, constituting a large genetic pool and permitting normal evolution of the species. Second, most wild vicuña populations exist in protected areas or in areas of low human population density. The implementation of the relevant regulations is accomplished by provincial wildlife authorities, provincial and national protected areas agencies, and the security forces of the National Gendarmes. Although, in the 1997 CITES proposal the national population of vicuñs was estimated to be 32,000, the latest census has estimated a population of 50,000 wild vicuñs. Third, the intent of the management system is to get local residents to change from introduced domestic ruminants to vicuña. Fourth, the faunal legislation of each province assures the protection of the vicuña, and generates special funds in order to achieve the objectives of conserving fauna in general and the vicuña in particular. Among the national and provincial protected areas for vicuña, there are three Biosphere Reserves in three separate provinces.

Response: We appreciate the comments from the Regional Commission of Vicuña Provinces. We do not understand how captive herds can meet the demand for vicuña fiber for local craft use. We understand that the fiber produced by captive vicuña populations in Argentina is sold to a single company based in Buenos Aires; the fiber is not retained locally and does not satisfy local craft demand. Thus, local demand for fiber apparently still exists.

We appreciate that local authorities are implementing laws and regulations to the best of their ability, and that the National Gendarmes have succeeded in reducing poaching of wild vicuña. We question the accuracy of the total population estimate of 50,000, considering that certain vicuña populations have reportedly declined substantially in the last few years due to drought (Dr. A. Canedi in litt. to FWS 1999). We have not seen any reports that would corroborate this population estimate on the basis of a scientifically-sound survey. We believe it unlikely that captive vicuña management will replace domestic livestock management on the Puna, at least in the near future. We understand that, at present, only about 20 individual ranchers have captive herds established with vicuña from CEA INTA at Abra Pampa (see below). Apparently there are not enough captive vicuña at Abra Pampa to establish many more captive herds at the present time.

Comment: Dr. Gustavo Rebuffi, Director of the Campo Experimental de Altura (CEA) of the Instituto Nacional de Tecnologia Agropecuaria (INTA) (High-Elevation Experiment Station of the National Institute of Agricultural Technology) located at Abra Pampa in Jujuy Province, wrote in support of the captive management system developed and implemented by the CEA (hereafter referred to as the INTA captive management system, program, or model; this program is described in greater detail in the “Argentina: Population Utilization” section). Dr. Rebuffi provided specific comments on the proposal, and attached a summary of his doctoral dissertation “Characterization of Vicuña Wool Production in the Argentine High Plateau.” According to Dr. Rebuffi, there are no demonstrated adverse effects associated with captive management. Rather, the benefits of captive management are enormous for the conservation of wild vicuñas, among many reasons, because the market prefers to be supplied with legal wool. Dr Rebuffi stated that poaching in Argentina has almost disappeared since the captive management program was initiated, and the wild population now numbers close to 50,000. The National Gendarmes has entered into an agreement to cooperate in the implementation of INTA's captive management program, and the Vicuña Convention recognizes captive management as a valid option for the species. Dr. Rebuffi said that there are no genetic or disease problems associated with captive management, and that vicuñas in captivity have their health guaranteed by good veterinary care. Dr. Rebuffi also cited economic benefits of the captive management program for those persons with captive herds. He believes that the INTA captive management program is not more widespread because there are not enough vicuña in captivity, otherwise it would displace the domestic livestock alternative over time.

We also received comments in support of the INTA captive management program from a number of individuals, including: 14 current or former employees of CEA INTA; 6 other employees of INTA; 12 agronomists, animal production agents, economists, rural extension agents, or veterinarians in northwestern Argentina (Salta and Jujuy Provinces) some of whom are possibly INTA employees; 8 individuals who have captive vicuña populations provided by CEA INTA; one rancher; one former director of natural resources of Salta Province; one zoo director; one professor at Catholic University of Argentina; one reproductive technologist; one agricultural engineer; one “advisor”; and one foundation representative. These commenters primarily emphasized the economic benefits that would accrue to poor residents of the Argentine Puna from allowing the import of vicuña fiber into the United States. Many commenters mentioned that captive vicuña were maintained in healthy condition, and that there was little if any mortality associated with fiber harvest. Many commenters also noted that captive management operations reduce poaching pressure on wild populations, and that this alternative could lower the numbers of domestic livestock on the Puna rangelands.

Response: Clearly, a tremendous amount of work has gone into development of the INTA program. While we appreciate and support the need to address the socioeconomic plight of poor residents of the Argentine Puna, the ESA is principally concerned with the conservation of threatened and endangered species in the wild. We understand that the INTA captive management system has been developed primarily in the context of a rural development program for small producers in the Puna of Salta and Jujuy, and, therefore, places great emphasis on the economic betterment of the local people. This is a vital concern. However, in relation to listings under the ESA, economic arguments are only important in the context of providing direct or indirect conservation benefits for listed species.

We note that the INTA captive management model (i.e., the development of individual captive herds) is based on the socio-economic system of the Argentine Puna. However, we also understand that only around 20 individual ranchers have captive herds, so the number of people benefitting from this program is small in comparison to the total number of local Puna residents. The number of captive herds is not likely to increase substantially in the near future. We believe that one cornerstone of successful sustainable use programs is sustainable economic benefits for a broad spectrum of local indigenous people, not just a few.

We recognize that the majority of captive populations are probably well maintained and in good health, and that mortality associated with shearing is probably low. However, we are aware of one instance where most of the animals in a captive population died because the animals were sheared in winter and developed pneumonia soon thereafter. We continue to welcome documentation that captive populations reduce poaching pressure on wild populations.

Comment: Dr. Arturo Canedi of the Centro de Estudios & Investigaciones de Uso Sustentable of the Universidad Nacional de Jujuy wrote to support the captive management of vicuña in Argentina. He stated that the vicuña population of Olaroz-Cauchari Reserve in Jujuy Province has exhibited a logistic growth curve since monitoring began in 1987, and now exceeds the carrying capacity of the environment. That, added to a drought in 1996-1998, has produced a grave decline of the population (from 6,500 in 1995 to 4,800 in 1998). This situation has been repeated in other provinces. Drought is the environmental variable that has the greatest impact on recovering vicuña populations. Dr. Canedi stated that rational utilization of the species requires establishment of a culling process whereby live animals can be captured to repopulate other potential areas, and implementation of systems of captive management. These require creation of an infrastructure adequate to provide drinking water and increase the carrying capacity of the corrals in order to mitigate the effects of drought.

Response: We appreciate Dr. Canedi's new information on population declines in the Olaroz-Cauchari Reserve in Jujuy Province resulting from drought. Although we agree that management in a sustainable utilization program may involve the translocation of vicuña from one location to another, we believe that translocations should be based on previously-developed protocols that consider the possible population, genetic, and disease consequences of translocation. We are not aware that Argentina, or any other vicuña range country, has developed such protocols. The provision of drinking water and improvement of range conditions within corrals would entail extra costs, and takes management one step further away from natural conditions.

Comment: Pelama Chubut (Mr. Carlos Leers), an Argentine company dedicated to commercialization of fiber from South American camelids, wrote in support of including the INTA captive management program in the special rule. The company has invested significant funds to finance “Productores Minifundistas” who do not have funds to invest and who cannot get credit from a bank or financial institution. The company has decided to have a stake in this undertaking, associating itself with producers to obtain the fiber, and guaranteeing the producers a competitive price at the international level.

Response: We understand that this company has invested in the captive management operations in northwest Argentina (by providing loans to individual ranchers to purchase fencing material for the vicuña corrals), and therefore has an economic interest in the success of this program. We also understand that the loans are repaid through fiber sales to the company. Although such an arrangement may assure a competitive price to the ranchers, it may also put them at a disadvantage by preventing them from seeking or obtaining the highest possible economic return from their vicuña fiber. It does not appear that the company contributes any proceeds from sales of vicuña fiber or fiber products to conservation programs for wild vicuña.

Comment: Dr. Bibiana Vila of Profauna, Conicet, Universidad Nacional de Lujan, provided a number of specific comments regarding vicuña populations and conservation in Argentina. She expressed opposition to the captive management system of Argentina, principally because it alters the process of natural selection in vicuña, and because it does not provide the claimed social and economic benefits to campesino (peasant) communities. She provided a paper she presented at a camelid conference in Cuzco, Peru (Vila 1999) arguing that “wildness” in vicuña is a characteristic essential to the species' conservation and management. Lilian Villalba, a Bolivian member of the Grupo Especialista en Camelidos Sudamericanos (GECS—South American Camelid Specialist Group) of the World Conservation Union/Species Survival Commission (IUCN/SSC) expressed concern over the captive management system in Argentina for biological and socioeconomic reasons. She stated that, on a biological basis, captive management does not guarantee vicuña conservation, and may result in changes to captive populations through artificial selection and intensive management. Also, from a socioeconomic standpoint, captive populations require a major investment that communities cannot afford, and benefits a reduced number of people. Finally, she opined that captive management focuses more on economic gain than on conservation of the species in the wild, and allows private companies to become involved to the detriment of local communities. In this way captive management may foster increased poaching rather than reduce it.

Response: We appreciate these comments from South American scientists with significant expertise in this species. We agree that it is not desirable to re-domesticate the vicuña through artificial selection in captive management systems. We do not have enough information to determine the exact financial return realized by individual ranchers participating in the INTA captive management program, but it appears that most or all individual ranchers have taken loans from, and, therefore, are indebted to the company that also purchases their fiber. We understand that only around 20 individual ranchers are participating in the INTA program, so the number of people realizing a benefit from this program is very small in comparison to the total number of Puna residents. The number of captive herds is not likely to increase substantially in the near future. However, there is another captive management program—the Criadero Coquena—El Refugio de las Vicuñas of the Asociacion Civil de Artesanos y Productores “San Pedro Nolasco de los Molinos”—that appears to be benefitting an entire campesino community. This program is discussed immediately below, and in the “Argentina: Population Utilization” section. We believe that management of wild vicuña populations is the best approach to ensure ecological and equitable socioeconomic sustainability.

Comment: Dr. Silvia Puig, writing on behalf of the Grupo Especialista en Camelidos Sudamericanos (GECS), stated that GECS regards management of wild, free-ranging vicuña populations (where wild vicuña are herded, shorn, and released in their natural habitats) as more advisable than captive management, because it implies a minor modification in natural conditions of both the species and environment, and gives greater guarantee of both sustainability and local reinvestment of revenues for social and ecological betterment. However, captive management could be compatible with conservation of vicuña populations and natural habitats if four conditions are met (see “Argentina: Population Utilization” section). According to Dr. Puig, technical evaluations to determine whether these four conditions have been met are still pending for most of the captive management operations in Argentina. Dr. Puig stated that there is one captive management operation that appears to have begun fulfilling these criteria—the Asociacion Civil de Artesanos y Productores “San Pedro Nolasco de los Molinos” (Los Molinos). Dr. Puig noted that, among other things, Los Molinos has a structure wherein its participants share tasks and benefits of using the vicuña, has established a captive management operation (Criadero Coquena—El Refugio de las Vicuñas) in an area not immediately within occupied vicuña habitat, has conducted a vicuña population survey in the Molinos Department of Salta Province, and is interested in further developing and implementing a conservation program for the wild vicuña.

Response: We appreciate the comments from Dr. Puig on behalf of GECS, the leading organization of South American camelid specialists. We agree that programs satisfying the conditions mentioned by Dr. Puig are more likely to have a demonstrable conservation benefit, and a direct link between conservation and equitable economic benefits to local human populations, which, in our opinion, is a requisite of sustainable utilization. We agree that sustainable management of wild vicuña populations offers the best prospects for conservation and socioeconomic benefit to local populations.

Comment: The Asociacion Civil de Artesanos y Productores “San Pedro Nolasco de los Molinos” (Los Molinos) provided additional information on its history and its captive management operation (Criadero Coquena—El Refugio de las Vicuñas). Significant points include: Los Molinos obtained its vicuña from CEA INTA in 1994, but does not rely on CEA INTA for technical support. Los Molinos has not accepted any financial support for developing its operation, and does not sell the raw fiber but uses the fiber to produce a finished product on site. Los Molinos has multiple participants; and is based on conservation of wild populations.

Response: Los Molinos' captive management program is based on a different model than the INTA program. The Los Molinos model includes: a component of research and conservation of wild vicuñas; an effort to “add value” to the raw fiber by producing traditional crafts, thereby increasing the financial return to the local community; and economic benefits that accrue to multiple persons rather than an individual rancher. As such, this program appears to have a demonstrable conservation benefit, and a direct link between conservation and equitable economic benefit to local peoples.

Comment: The Asociacion Criadores de Camelidos de Argentina (ACCA—Argentine Association of Camelid Raisers), the Programa Regional de Apoyo al Desarrollo de Camelidos Sudamericanos (Regional Program to Support the Development of South American Camelids), and the Fondo Internacional Desarrollo Agricola (FIDA—International Fund for Agricultural Development) all wrote in support of Los Molinos and its captive management operation.

Response: These responses indicate that Los Molinos' program has financial and technical support of a number of regional organizations.

Two comments pertained exclusively to vicuña in Bolivia.

Comment: The Government of Bolivia (Mario Baudoin Weeks, Director General de Biodiversidad, Ministerio de Desarrolo Sostenible y Planificacion) agreed with the proposal to reclassify all populations listed as endangered (Appendix I) to threatened (Appendix II) under the ESA. Bolivia noted that they intend to manage their vicuña as wild populations.

Response: We appreciate Bolivia's comments, and agree that Bolivia's population should be classified as threatened. We support the Government of Bolivia's intention to manage its vicuña as wild, free-ranging populations.

Three comments pertained exclusively or primarily to vicuña in Chile.

Comment: The Director de Medio Ambiente of Ministerio de Relaciones Exteriores de Chile (Rolando Stein Brygin) commented on several aspects of the proposed rule and proposed special rule. He stated that prohibiting the entry of products from animals maintained in semi-captivity will restrict management and commercialization which can be carried out autonomously by the countries affected by the proposal. The signatory countries of the Vicuña Convention have already stated and re-affirmed that semi-captive management is a valid option for managing the species. The Director further stated that Chile has a solid and substantial system for control and protection of wild fauna, and that the present Hunting Law provides the Government with necessary tools and mechanisms for control and administration of sustainable management programs for the species and/or the establishment of breeding operations, so long as hunting the vicuña is prohibited and its capture is strictly regulated. He also noted that about 81 percent of vicuña in Chile are found within protected areas, and that only about 3 percent of the vicuña in the First Region of Chile will be included in the present project on sustainable use. He does not believe that Chile, either now or in the future, will have the problem of overusing the species, since utilization will not be centered exclusively on wild specimens, but also on specimens maintained in captivity. He noted that there have been a number of chromosomal and DNA studies on the taxonomic differences between the two subspecies.

Response: We appreciate Chile's comments. We continue to have concerns about captive management systems for vicuña, because the conservation value and socioeconomic benefits of captive management have yet to be demonstrated over the long term. These concerns are discussed in greater detail in the “Chile: Population Utilization” and “Description of the Special Rule” sections that follow. With regard to the threats posed by overutilization and inadequacy of existing regulatory mechanisms, we recognize that Chile has established significant protected areas and put in place substantial regulatory mechanisms to manage the species and to control illegal harvest. For that reason we do not believe that these factors endanger vicuña populations in Chile. However, we believe that regulatory mechanisms for harvest and commercialization as part of a sustainable use program must be tested and demonstrated to be adequate before this factor can be discounted as a potential threat to the species.

Since publication of the proposed rule, we have received and reviewed additional information regarding the issue of subspecies of the vicuña. This issue is discussed in greater detail in the introductory paragraphs of the “Summary of Factors Affecting the Species” section that follows.

Comment: Cristian Bonacic, a Chilean veterinarian and wildlife biologist at Oxford University who has many years of experience working on vicuña conservation and sustainable use, questioned the conservation value and economic benefits of captive vicuña management systems. He suggested that a free-ranging management system where wild vicuña are herded, shorn, and released would be the best alternative to sustainably utilize this species.

Response: We continue to have concerns over the conservation value and socioeconomic benefits of captive management systems for vicuña. These concerns are discussed in greater detail in the “Chile: Population Utilization” and “Description of the Special Rule” sections that follow. We agree that sustainable management of wild vicuña populations offers the best prospects for long-term conservation and equitable socioeconomic benefit to local populations.

Two comments pertaining exclusively to vicuña in Ecuador were received, both from the Government of Ecuador.

Comment: According to the submission from the Executive Director of Ecuador's Ministerio del Ambiente (Danilo Silva Chiriboga), the vicuña was first introduced in Ecuador in July 1988 (not 1993 as stated in the proposed rule), and the population had increased to 1,104 individuals as of 1999. He stated that Ecuador's goal is to have a vicuña population of 3,000 after 5 years, at which time it intends to propose that its population be downlisted to Appendix II of CITES in order to commercialize fiber production. However, according to the submission from the Wildlife Department within that Ministerio del Ambiente (Sergio Lasso B.), Ecuador will require at least 10 years to obtain a population sufficiently large to harvest fiber. The Executive Director stated that retention of the vicuña population of Ecuador as endangered under the ESA would prevent its reclassification under CITES. He further stated that the status of vicuña in Ecuador is no longer in the “experimental stage.” Ecuador provided us with a copy of its report to the 19th Meeting of the Technical Committee of the Vicuña Convention, entitled “Report of the Vicuña Reintroduction Project in Ecuador” (hereafter referenced as Government of Ecuador 1999) which discusses the current status of its vicuña population.

Response: We appreciate Ecuador's comments. We continue to believe that downlisting the vicuña population of Ecuador is not warranted because of its small population size (only 1,100 animals) and its relatively recent history as an introduced population. Our rationale is discussed in greater detail in the “Distinct Vertebrate Population Segment” section. However, we also note that continued retention of this population as endangered under the ESA has no bearing on its listing under CITES, because CITES and the ESA have different implementing regulations and listing criteria. If the population of Ecuador is proposed for downlisting to Appendix II at a future meeting of the Conference of the Parties to CITES, Parties may vote to adopt that proposal. Adoption of a CITES downlisting proposal would not affect the species' status under the ESA. We would evaluate any such proposal based on the CITES listing criteria (Resolution Conf. 9.24), and not the ESA criteria.

Comment: The Vicuña Convention Resolution No. 207/99, submitted as a comment, states that the proposed rule excludes the vicuña populations of Ecuador without establishing the bases and considerations to support such restriction, demonstrating a lack of information on the status of the species in this country.

Response: We have reviewed information provided by the Government of Ecuador, including its report to the 19th Meeting of the Technical Committee of the Vicuña Convention, entitled “Report of the Vicuña Reintroduction Project in Ecuador” (Government of Ecuador 1999). We continue to believe that the vicuña population of Ecuador is properly classified as endangered, and that reclassification to threatened status is not warranted at this time (see “Distinct Vertebrate Population Segment” section).

Several comments pertaining exclusively or primarily to vicuña in Peru were received, including comments from the Government of Peru (Consejo Nacional de Camelidos Sudamericanos—CONACS).

Comment: CONACS (Domingo Hoces Roque) stated that vicuña must be fully and effectively used in any of the options for legal management that have been adopted by range countries, or vicuña will continue to be seen as troublesome pests that interfere with economic development. This would discourage interest in exploiting vicuña and, finally, in protecting it. Vicuña populations in “semi-captivity” in Argentina (approximately 1,000 animals) and Peru (21,301 animals in Sustainable Use Modules in 1999) represent a relatively unimportant proportion of the general vicuña population in each country (2% and 15% respectively). CONACS said that research on and changes in profitability of management options in relation to social and economic development needs may cause current management options to change over time. Therefore, the adoption of commercial restrictions is not recommended if they are based solely on one management option. In Peru, stated CONACS, the commercial exploitation of vicuña fiber, whether it comes from wild, free-ranging populations or captive populations (called Sustainable Use Modules, or SUMs, in Peru), not only generates economic income for poor rural populations, but also protects the species itself since a large part of the income goes to financing protection systems in the field through payments to community park guards, and the purchase of radio equipment, binoculars, and firearms. With an increase in fiber value, the sustainable use of the species will be assured.

In consideration of the above, CONACS made the following recommendations. First, commerce in fiber, cloth or garments containing vicuña fiber from range countries to the United States should have no more requirements and/or restrictions than those contained in the Vicuña Convention and CITES. Whatever legal management methods that have been independently adopted by range countries should be acceptable to the United States, provided that they are in line with the principles and agreements of the Vicuña Convention and CITES. Second, each range country should be subject to the same treatment in regard to trade of vicuña products with the United States. Treating Ecuador and Argentina differently would put them at a disadvantage in relation to other Vicuña Convention countries, and would promote the resurgence of poaching and the illegal market. And, third, that vicuña fiber, textiles and/or garments entering the United States should only have to meet the following general requirements: (1) That they come from vicuña populations in Appendix II of CITES; (2) that they are of fiber sheared from live animals, or in exceptional and technically justified cases, from animals taken legally and by authorization; (3) that they bear the brand, logo, and/or weave adopted and authorized by the countries of the Vicuña Convention and CITES; and (4) that they bear the official control certificates of the countries of origin, of CITES, and of others who adopt safeguarding the species by mutual agreement.

Response: We appreciate the comments of the Government of Peru. The CONACS recommendations imply that the vicuña should be delisted from the ESA, thus removing all ESA protections and limiting restrictions to only those contained in the Vicuña Convention and CITES. Although vicuña populations are growing throughout the species' range, we believe that some populations have not recovered to the point that they are no longer threatened by one or more of the five ESA-listing factors (see “Summary of Factors Affecting the Species” section). Consequently, we continue to believe that reclassification to threatened status under the ESA is the most appropriate course of action at present (except for the population of Ecuador). We do not agree that all management systems or all countries must be treated the same in regard to trade of vicuña products with the United States, because each vicuña range country has chosen to pursue a slightly different management system, which can impact in different ways on the recovery of the species. We continue to believe that the conservation value and economic benefit of specific vicuña management systems must be tested and demonstrated over the long term before they can be approved without restriction. We agree that imports to the United States must satisfy the four points specified by CONACS; each of these points is contained in the special rule, although they are not the only requirements contained in the special rule (see “Description of the Special Rule” section).

Comment: Dr. Edgar Sanchez of La Molina University mentioned a number of potential problems with the captive management system being implemented for Peruvian vicuña populations. First, fencing populations could prevent the movement of vicuña between metapopulations, interfering with metapopulation dynamics. Second, disease problems, ectoparasites in particular, could increase. Third, there is potential for overgrazing within the enclosures (corrals) if the carrying capacity is exceeded. Fourth, there are potential genetic problems if the initial population within each enclosure is small, and if animals are translocated from one area to another without consideration of genetic consequences. Sanchez nevertheless felt that even if all proposed enclosures (SUMs) were actually constructed, they would constitute a very small percentage (less than 5%) of the total area with vicuña in Peru, so that any problems would be limited to a small area. Thus, Sanchez felt the main problem is demonstrating the biological and economic viability of the captive management system. These two goals could be achieved with an effective monitoring program for each enclosure (SUM). Sanchez believes that the most effective results, both for conservation and production of economic benefits, would be achieved with management of wild, free-ranging populations. The most successful experiences with vicuña population management (Lucanas and San Cristobal) have involved wild, free-ranging populations. Sanchez also emphasized that Peru needs to pay special attention to the vicuñas in protected areas, to ensure that there are some places where wild populations can exist without human interference with behavior and natural selection.

Response: Dr. Sanchez has identified a number of factors of concern with captive management systems. We agree that the main problem is demonstrating the biological and economic viability of captive management over the long term, and that the necessary information will only be obtained through an effective monitoring program for each SUM. We also agree that the most effective results, both for conservation and economic benefits, are likely to be achieved with management of wild, free-ranging populations. We agree that close attention should be paid to vicuñas in protected areas, and that vicuña would benefit from expansion of the size and number of protected areas throughout their range, and reduction of the level of competition with domestic livestock. See additional discussion in the “Peru: Population Utilization” and “Description of the Special Rule” sections.

Comment: Dr.Gabriela Lichtenstein of the Instituto Internacional de Medio Ambiente y Desarrollo—America Latina (IIED-AL) provided two reports summarizing her research on the two vicuña management systems currently being utilized in Peru (Lichtenstein et al. 1999a, Lichtenstein et al. 1999b). Her research team assessed and compared the captive management system (SUMs) with the wild, free-ranging management system from ecological, social, and economic perspectives, and conducted a feasibility analysis of both systems. Their findings strongly suggest that management of wild, free-ranging vicuña populations is a better alternative than captive management from all three perspectives—ecological, economic, and social. They suggested that the SUM project would greatly benefit if it were accompanied by solid research on ecological carrying capacities, and on the genetic, behavioral, and population impacts of enclosures on vicuñas. The captive management program includes an effort to translocate vicuña from areas with many animals to areas with few or none in order to encourage communities with few or no vicuñas to participate in the program; this program has potential negative genetic and disease consequences.

Response: Dr. Lichtenstein's research is the first to systematically examine and compare the costs and benefits of captive management versus wild, free-ranging management systems from ecological, social, and economic perspectives. Therefore, we attach great importance to her conclusions that, in Peru, management of wild, free-ranging vicuña populations is likely a better alternative than captive management (although we recognize that these conclusions would benefit from additional research). We agree that corrals can generate a conflict between ecological and economic interests. Corrals have a very fine line between economic viability and negative ecological impact. Additional research and monitoring of SUMs is needed to assess the ecological, economic, and social viability of the program. As mentioned above, we believe that translocations should be based on a previously-developed protocol which considers the possible genetic and disease consequences of those translocations. We are not aware of such protocols in Peru.

Section 4 (a)(1) of the Act and regulations implementing the listing provisions of the Act (50 CFR part 424) set forth the procedures for adding species to or deleting species from the list of endangered and threatened wildlife or changing the status of any listed species. A species shall be listed or reclassified if we determine, on the basis of the best scientific and commercial data available, that the species is endangered or threatened because of any one or a combination of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or human-made factors affecting its continued existence.

We base this final rule on an assessment of the five listing factors in the Act, utilizing the best scientific and commercial data available including information provided in the original petition, supporting statements for the various CITES amendment proposals related to vicuña, other published literature and articles, unpublished reports, the Service's status review of vicuña, and comments received during the formal public comment period. The assessment considered the present biological status of the vicuña within the range countries of Argentina, Bolivia, Chile, and Peru. The small population that has recently been introduced into Ecuador is treated separately under the “Distinct Vertebrate Population Segment” section below. We do not propose to change that population's endangered classification under the Act.

There is no scientific consensus on the number of valid vicuña subspecies. Two subspecies have been described— V. v. mensalis (Molina 1782 cited in Wheeler 1995) in the northern portion of the range and V. v. vicugna (Thomas 1917 cited in Wheeler 1995) to the south. These putative subspecies have been described on the basis of slight differences in size and color, and the lack of a prominent chest fringe in V. v. vicugna (Canedi and Pasini 1996). However, many authors do not accept this division, because no clearly defined geographic separation exists between the two supposed subspecies, and because they feel that genetic and phenotypic evidence does not support differentiation. Other authors feel that available genetic and phenotypic information supports the existence of two subspecies or two geographic races of vicuña. Dr. Eduardo Palma (Departamento de Ecologia, Pontificia Universidad Catolica de Chile) studied a sequence of the cytochrome b gene of the vicuña, and concluded that the subspecific separation is valid (Jane Wheeler, pers. comm. with K. Johnson, DSA, 2000). He concluded that V. v. vicugna is the more primitive form, and V. v. mensalis is closely associated with the domestic alpaca. In contrast, Dr. Jane C. Wheeler (pers. comm. with K. Johnson, DSA, 2000) studied a different sequence of the cytochrome b gene and did not identify any unique genetic markers differentiating the two supposed subspecies in the animals she sampled from Argentina, Chile, and Peru. Sarno et al. (submitted) likewise did not find molecular genetic distinctions between both subspecies in the vicuña they sampled from Chile and Bolivia.

Because the vicuña's distribution is more or less continuous from north to south, without any distinct geographic or genetic barriers defining the supposed subspecies (Sarno et al. submitted), it would be inappropriate and arbitrary to draw a boundary between the two supposed subspecies for purposes of management or listing under the Act. Both Sarno et al. (submitted) and Wheeler (pers. comm. with K. Johnson, DSA, 2000) emphasize the need to manage vicuña at the population level. Therefore, the supposed subspecies are not differentiated in this rule and the term vicuña, used herein, refers to all populations of the species throughout its total range.

Vicuña are estimated to occur at varying densities on approximately 20.5 million ha of Andean highlands extending in a rather narrow strip from central Peru through Bolivia, and into northwest Argentina (between 8 and 30 degrees South latitude). The historical range of the vicuña may have been twice the present distributional area. A small, disjunct, recently-introduced population also occurs in Ecuador.

Vicuña habitats occur in the high Andean plateau region from 3,000 to 4,800 m above sea level (Hoces 1992, Torres 1992). The habitats vary climatically on both elevational and latitudinal scales but are generally arid and cold, resulting in limited vegetation cover. Principal vegetation types are halophytic vegetation associated with salt pans, grassy steppes, shrub-steppes, and wet meadow areas (vegas) (Cajal 1992). This highland habitat has been somewhat degraded by humans and their domesticated livestock, but still represents an extensive habitat for vicuña. The average vicuña population density is very low, reflecting the limited carrying capacity of the high Andean habitats as well as the fact that many vicuña habitats are understocked. The carrying capacity of vicuña habitats varies widely, consequently vicuña tend to be patchily distributed throughout their range. Protected areas, including national reserves, national parks, and provincial reserves, are scattered throughout vicuña habitat in each of the four countries considered in this final rule.

Vicuña distribution in Argentina includes portions of the northwestern provinces of Jujuy, Salta, Catamarca, La Rioja, and San Juan at approximately 3,200 to 4,600 m elevation (Cajal 1992). Vicuña habitats in Argentina cover a surface area of about 9 to 10 million ha (Cajal 1992, Canedi 1997, pers. comm.). During the 1800's the vicuña's distribution covered over 12 million ha of Argentina (Cajal 1992).

Vicuña in Argentina occur in three ecoregions or biogeographical provinces: Prepuna, Puna, and Altoandina (S. Puig, in litt. to the Fish and Wildlife Service (FWS), 1999). The Prepuna Ecoregion comprises high Andean foothills, escarpments and outcroppings; the Puna Ecoregion represents higher-elevation areas of plains or tablelands between mountain ranges; and the Altoandina Ecoregion is the highest mountains. The general area of the vicuña's distribution in Argentina is characterized by uplifted mountains surrounding extensive valleys featuring alkaline or saline flats and a rolling topography. The area is generally arid and cold (frost can occur year-round). Principal vegetation types are halophytic vegetation associated with salt pans, grassy steppes, shrub-steppes, and wet meadows (many water courses are temporary but there are occasional areas of damp ground where surface water and green vegetation in the form of rushes, grasses and a variety of succulent plants occur). Much of the thin vegetation cover over most of the Puna consists of grasses and xerophilous half-shrubs (Comisión Regional de la Vicuña 1994).

The Vicuña Provinces (Jujuy, Salta, Catamarca, La Rioja, and San Juan) have created six provincial reserves for vicuña: Laguna de los Pozuelos, Olaróz-Cauchari, Los Andes, Laguna Blanca, Laguna Brava, and San Guillermo. In Jujuy Province, Los Pozuelos Reserve was created in 1980 and consists of 308,000 ha. About 15,000 ha of this Reserve have been incorporated into the UNESCO Man and Biosphere (MAB) program as a natural area of international significance. The vicuña population in the Reserve was estimated to be 2,000 in 1992 (Cajal 1992), and 2,750 in 1997 (CITES 1997a). The Olaróz-Cauchari Flora and Fauna Reserve was created in 1981 to enhance vicuña populations and consists of 543,300 ha. The vicuña population in the Reserve in 1994 was estimated to be 6,500 and growing (Canedi 1995, CITES 1997a). Dr. A. Canedi ( in litt. to FWS 1999) commented that a drought in 1996-1998 produced a substantial decline in the vicuña population of the Olaróz-Cauchari Reserve, from 6,500 in 1995 to 4,800 in 1998.

In Salta Province, the Los Andes Wildlife Reserve of 1.44 million ha was created in 1980. The rigorous climate restricts the human population to very low densities. Agriculture does not exist in this area, and the ranching of cattle, sheep, goats and llamas is rudimentary. A partial census in the Reserve in 1993 counted 2,000 vicuña (CITES 1997a).

In Catamarca Province, the Laguna Blanca Wildlife Reserve was created in 1979 and enlarged in 1982 to 973,270 ha at which time it became recognized by the UNESCO MAB program as a natural area of international significance. The human population is very sparse and scattered in the Reserve. The 1993 vicuña population in Laguna Blanca Reserve was estimated to be 3,505 (CITES 1997a). Rabinovich et al. (1991) studied potential biological and economic consequences of vicuña use in Laguna Blanca Reserve.

In La Rioja Province, the Laguna Brava Reserve for Vicuñas and the Protection of Ecosystems was created in 1980 and consists of 405,000 ha. Human habitations do not exist in the Reserve, which is contiguous with the San Guillermo Faunal Reserve in San Juan Province. The 1996 vicuña population in the Reserve was estimated to be 2,187 (CITES 1997a).

In San Juan Province, San Guillermo Faunal Reserve was created in 1972 and consists of 880,260 ha. In 1982 it became part of the UNESCO MAB program as a natural area of international significance. This was the first Provincial Reserve dedicated primarily to the protection of the vicuña. The area is devoid of human and domestic animal populations. In 1992, the vicuña population in the Reserve was estimated to be 7,100 (CITES 1997a).

In Jujuy Province, several areas have been designated as “centers of protection” for vicuña, including Vilama (97,000 ha), Santa Victoria (54,600 ha), Palca de Aparzo (55,800 ha), Caballo Muerte (18,500 ha), Casa Colorado (31,000 ha), Abra de Zenta (69,000 ha) and Serranias del Chani (158,900 ha) (CITES 1997a; V. Lichtschein, CITES Management Authority of Argentina, pers. comm. with K. Johnson, DSA, 1999). We understand that these areas are not provincial reserves at the present moment (S. Puig, pers. comm. with K. Johnson, DSA, 2000), although Vilama is within the project area for a proposed, bi-national Biosphere Reserve “Lagos del Cielo de America” which has been presented to the MAB committee but not yet approved (B. Vila, pers. comm. with K. Johnson, DSA, 2000). These areas do not have any protection staff at present (B. Vila, pers. comm. with K. Johnson, DSA, 2000).

The high-altitude experimental station (Campo Experimental de Altura or CEA) of the Instituto Nacional de Tecnologia Agropecuaria (INTA) is located at Abra Pampa in Jujuy Province. This experimental station of 3,000 ha is dedicated to the development of management procedures to enhance fiber production of vicuña, assure the survival of the species, and to enhance the economic well-being of certain Puna ranchers (Rebuffi 1995).

We have little quantitative information on the extent or condition of vicuña habitats outside of protected areas in Argentina. Anecdotal information suggests that overgrazing by domestic livestock (leading to soil compaction and desertification), and direct competition for forage with domestic livestock may be important factors limiting the growth of vicuña populations outside protected areas (CITES 1997a). Other information indicates that some competition with domestic herbivores occurs in the arid Puna where precipitation is less than 300 mm per year but that competition is not as much of a problem in the humid Puna where precipitation may exceed 500 mm per year. The Argentine Government has implemented a program to combat desertification (el Programa de Acción Nacional de Lucha contra la Desertificación), which has included projects within the vicuña's distribution in Jujuy and Salta Provinces (V. Lichtschein, CITES Management Authority of Argentina, in litt. to FWS, 1999).

Information presently available to the Service indicates that vicuña populations throughout Argentina are not endangered by the present or threatened destruction, modification, or curtailment of habitat or range. However, vicuña populations remain threatened by this factor throughout Argentina because of ongoing problems related to overgrazing and desertification and direct competition with domestic livestock.

Vicuña occur in western and southwestern Bolivia in the Departments of Cochabamba, La Paz, Oruro, Potosi, and Terija (CITES 2000a). It has been suggested (DNCB 1997, pers. comm.) that vicuña may once have ranged over 13 to 16.7 million ha in the Puna and high Andean region of Bolivia before European colonization.

Vicuña are found in a number of protected areas in Bolivia. Within the National System of Protected Areas (Sistema Nacional de Areas Protegidas, or SNAP), vicuña occur in the Ulla Ulla National Fauna Reserve (240,000 ha), Eduardo Avaroa National Andean Fauna Reserve (714,745 ha), and Sajama National Park (120,000 ha) (CITES 2000a). Other protected areas with vicuña are the Huancaroma Wildlife Refuge (8,000 ha), Llica National Park (13,100 ha), Yura National Fauna Reserve (10,000 ha), and the Incakasani-Altamachi Andean Fauna Reserve (23,300 ha) (CITES 2000a).

The Bolivian Government has established Vicuña Conservation Units (VCU) for administrative and management purposes (CNVB 1996). Eight VCUs were originally established by the Instituto Nacional de Fomento Lanero (INFOL 1985); a ninth unit was subsequently added as a result of the National Vicuña Census of 1996 (CNVB 1996). These nine VCUs encompass all of the vicuña's geographic range within Bolivia, an area of 10.1 million ha (CNVB 1996). The National Vicuña Census of 1996 recorded vicuña populations in 76 “registered census areas” totaling 3,428,356 ha within the nine VCUs (CNVB 1996). These registered census areas are distributed throughout the Bolivian highlands at an elevation range between 3,600 and 4,800 m. Thirty of these registered census areas did not have any vicuña in the previous national census (1986), indicating a significant increase in the vicuña's distribution within Bolivia over a 10-year period. Sixty-nine percent of the vicuña counted in 1996 (23,393 of 33,844) occurred in the Conservation Units of Lipez-Chichas, Mauri-Desaguadero and Ulla Ulla.

The present distribution of vicuña in Bolivia is expanding, but will likely never equal the former distribution range because of habitat changes caused by overgrazing by sheep and other domestic livestock, and human developments such as roads, villages, and cities. Vicuña generally occur on communal property lands in Bolivia. In the northern highlands vicuña share habitats mainly with alpacas; in the central highlands, with cattle, sheep, llamas, alpacas and agriculture; and in the southern highlands, with llamas (CITES 1997b). Overgrazing, especially by sheep, has reduced range carrying capacity in many areas. Bolivia's Programa Nacional de Conservacion de la Vicuña (National Program for Conservation of the Vicuña) includes several measures intended to conserve and improve vicuña habitats, including the development of vicuña management plans in communal management areas and the development of Planes de Uso del Suelo (Soil Use Plans) (CITES 2000a). Bolivia also has a program to combat desertification on the altiplano, the Programa Nacional de Lucha contra la Desertificacion y la Sequia (PRONALDES) (CITES 2000a). We have no specific information on projects included in this program.

Information presently available to us indicates that vicuña populations throughout Bolivia are not endangered by the present or threatened destruction, modification, or curtailment of habitat or range. However, vicuña populations throughout Bolivia remain threatened by this factor due to overgrazing by domestic livestock and direct competition for forage with domestic livestock.

The vicuña occurs in extreme northeastern Chile in the Regions of Tarapaca, Antofagasta, and Atacama. Most vicuña in Chile are found within protected areas. National protected areas within the Sistema Nacional de Areas Silvestres Protegidas del Estado (SNASPE) include Lauca National Park (137,883 ha), Vicuña National Reserve (209,131 ha), and Salar de Surire Natural Monument (11,298 ha) within Parinacota Province of Tarapaca Region, and Isluga Volcano National Park (174,744 ha) in Iquique Province, Tarapaca Region. Caquena Management Zone (90,146 ha) is a special management area on private lands (Bonacic 2000b). Over 96 percent of the vicuña in Chile are found within the Caquena Management Zone, Lauca National Park, and the Vicuña National Reserve within Parinacota Province (Galaz 1997, pers. comm.). These areas have typical vicuña habitats and limited human populations.

Information presently available to the Service indicates that vicuña populations in Chile are not endangered by the present or threatened destruction, modification, or curtailment of habitat or range, but they remain threatened by this factor due to competition for forage and space with domestic livestock.

Vicuña in Peru in 1997 were estimated to occur on about 6.4 million ha throughout the 15 to 17 million ha of suitable habitat in the Peruvian highlands. Factors that could impact areas of vicuña habitat in the future include increased urbanization, successful re-introductions of vicuña into present areas of suitable but unoccupied habitat, the replacement of domestic livestock by vicuña, and large-scale watershed reclamation schemes. Vicuña are better adapted to the rigorous climatic and ecological conditions of the Puna, than are many species of domestic livestock. Overgrazing by domestic livestock remains the greatest threat to habitat conditions in the Puna (and all other ecoregions where vicuña occur).

Vicuña occur in 782,186 ha of Peruvian protected areas, including Huascaran National Park (340,000 ha), Pampa Galeras National Reserve (75,250 ha) and the Salinas and Aguada Blanca National Reserve (366,936 ha) (Hoces 1997, pers. comm.).

The Peruvian Government has embarked on a large-scale watershed reclamation and soil conservation project, the Proyecto Nacional de Manejo de Cuencas Hidrograficas y Conservation de Suelos (PRONAMACHCS), that has already negatively impacted vicuña habitats in certain areas, and has potential to impact habitats over a much wider geographic area. PRONAMACHCS's “Sierra Verde”project impacted approximately 20,000 ha of high-elevation rangelands used by vicuña within the Salinas and Aguada Blanca National Reserve through the contour terracing of natural slopes, and planting of grasses and shrubs. The contour terracing created large ditches that vicuña would have difficulty crossing (see PRONAMACHCS Web Site http://www.pronamachcs.gob.pe), and conservationists are concerned that the disturbance may cause vicuña to leave the area.

Information presently available to the Service indicates that vicuña populations in Peru are not endangered by the present or threatened destruction, modification, or curtailment of habitat or range. However, vicuña populations in Peru remain threatened by this factor as a consequence of overgrazing by domestic livestock, direct competition for forage and space with domestic livestock, and large-scale watershed reclamation schemes.

Estimates suggest there may have been 1.0 to 1.5 million vicuñas in the Andean region during the Incan period. Vicuña fiber was valued by the Incas, and although utilized by the Incas, there is no evidence that the species was exploited at unsustainable levels. After the downfall of the Inca Empire, vicuñas were slaughtered in large numbers for both meat and fiber. In the 1950's populations may still have totaled 400,000, but hunting pressures and livestock competition may have reduced the total population to around 7,000 to 12,000 individuals by 1965 (Jungius 1971). Vicuña populations have begun recovering throughout the species' range during the last 30 years (Wheeler 1995). Approximately 200,000 vicuña are now estimated to occur throughout the species' Andean highland distribution (CITES 2000a). However, this recovery has not been without setbacks due to political, economic, and environmental fluctuations. For example, vicuña numbers in Peru were at a low point in 1965, grew steadily until a prolonged drought in 1978-1979 caused numbers in Pampa Galeras to decline substantially, gradually built to high levels in 1990, were significantly reduced by illegal hunting from 1991 to 1994, while there was civil unrest in the region, and have since recovered to and even exceeded 1990 levels.

The vicuña remains a potentially easily exploited resource. It has great economic value and is a highly visible, diurnal occupant of open landscape. Some poaching for skins or subsistence hunting for meat still occurs, as does killing of vicuñas because of perceived competition with domestic livestock. These sources of mortality could have a potentially serious impact on vicuña numbers, as they have done in the past.

All signatory countries (Argentina, Bolivia, Chile, Ecuador, and Peru) to the Conveño para la Conservación y Manejo de la Vicuña (Convention for the Conservation and Management of the Vicuña, or the Vicuña Convention), have agreed not to export fertile specimens of vicuña. The sole exception has been exports to the Republic of Ecuador to aid in their vicuña establishment efforts. This was accomplished within the multilateral frameworks of both the Vicuña Convention and the CITES Convention. We believe it would be desirable if this prohibition were to be extended to embryos, gametes, and tissue samples not intended for bona fide scientific research related to conservation of the species in the wild, and not in support of range country programs. This would help prevent establishment of captive vicuña herds outside the natural range of the species, which would undermine the conservation efforts of the range countries.

Population Status. In 1997, the vicuña population of Argentina was estimated to be approximately 32,000 animals, based on censuses completed in various protected areas between 1992 and 1996 (CITES 1997a). The most complete data were from Jujuy Province, where the Olaróz-Cauchari Reserve has been surveyed regularly since 1973-74. Estimates from protected areas in other provinces were somewhat dated and incomplete (CITES 1997a).

The vicuña population of Argentina is believed to have increased over the past 10 to 25 years. Data from the Olaróz-Cauchari Reserve showed a steady increase from about 330 individuals in 1973 to about 6,500 in 1994 (Canedi 1995). Laguna Brava Reserve also showed substantial population increases (CITES 1997a). Possible factors contributing to the population increases include the newly developed support for vicuña by some campesino communities of the Puna, the creation of protected areas, and the control of illegal hunting (Canedi 1997, pers. comm.). Dr. A. Canedi anticipates that some transplanting will occur from certain areas if populations grow to exceed carrying capacity.

In response to the proposed rule, two commenters stated that the vicuña population of Argentina is currently estimated to be 50,000 animals, however, we have not seen any reports that would corroborate this population estimate on the basis of scientifically-sound survey methodology. Vicuña populations may have actually declined during the later 1990's as a result of a prolonged drought. Dr. A. Canedi ( in litt. to FWS 1999) stated that a drought in 1996 to 1998 contributed to a substantial decline in the vicuña population of the Olaróz-Cauchari Reserve (from 6,500 in 1995 to 4,800 in 1998). He said that similar declines had occurred in other provinces. Thus, the current population estimate for Argentina is uncertain.

Population Utilization. Poaching is not considered by national authorities to be a major problem at present (V. Lichtschein, CITES Management Authority of Argentina, pers. comm. with K. Johnson, DSA, 1999; E. Hoffman, journalist, pers. comm. with K. Johnson, DSA, 1999), although instances of poaching have been observed. Sport hunting of vicuña is not permitted in Argentina, and no permits have been issued for the capture of wild vicuñas for scientific or educational purposes.

Vicuña utilization in Argentina consists of a developing effort to sustainably use wild populations in Jujuy Province, and efforts to develop captive management programs in the provinces of Catamarca, Jujuy, La Rioja, Salta, and San Juan. Two different captive management systems are in operation in Argentina. The first has been developed by personnel of the National Institute of Agriculture and Cattle Technology (INTA) at their High Altitude Experiment Station (CEA) at Abra Pampa (Rebuffi 1995). A second captive management operation has been implemented by the Asociacion Civil de Artesanos y Productores “San Pedro Nolasco de los Molinos” (Los Molinos) in the Molinos Department of Salta Province.

The CEA INTA captive management model consists of maintaining a variable number (20 to 36) of semi-domestic vicuña in fully-fenced enclosures of a few hectares. The vicuña are on loan from the CEA INTA semi-domestic herd at Abra Pampa; vicuña family groups are placed into the enclosures. The fenced enclosures are constructed on private lands with fencing material provided through loans from a private company. Individual ranchers who have been trained in vicuña management are responsible for protecting and caring for the vicuña. This model has been developed to be relevant to the conditions of the Argentine Puna where lands are owned by individual ranchers, human populations are very sparse, and vast areas of potential habitat with limited vicuña populations exist (CITES 1997a). The model is based on almost 30 years of study and experimentation with captive vicuña (Rebuffi 1995). Studies have emphasized efficient fences to contain vicuña, the determination of the carrying capacity of different range types, and the capturing and shearing of vicuña and fiber processing procedures.

Young vicuña, produced under these captive conditions, are either used as replacement stock or are returned to CEA INTA as compensation for the initial vicuña loan. The captive herds are sheared at two year intervals using the techniques developed at CEA. At the time of shearing, representatives of INTA, the Provincial Department of Renewable Natural Resources, the National Gendarmes (military police), a Doctor of Veterinary Medicine, and the fiber buyer are present to observe and/or supervise the operation. The fiber buyer in 1997 was an Argentine fiber processing company that provided the fencing materials through loans. The fiber purchase is used to retire the debt on the fencing materials, and to provide immediate payment to the individual rancher. The fiber, at the time of shearing, is weighed, bagged, marked, sealed, recorded and stored in a sealed warehouse until all commercial authorizations have been completed.

We understand that, to date, about 20 individual ranchers have captive herds established with vicuña from the captive herd at CEA INTA Abra Pampa. Apparently there are not enough captive vicuña at Abra Pampa to establish many more captive herds at the present time. Most of the captive herds have been established in Jujuy and Salta Provinces. We believe that the majority of captive populations are probably well maintained and in good health, and that mortality associated with shearing is probably low. However, we are aware of one instance where most of the animals in a captive population died because the animals (20 of 36 vicuñas) were sheared in winter and died of pneumonia soon thereafter (“Las Esquilaron en Pleno Invierno: Denuncian Muerte de Vicuñas,” PREGON, San Salvador de Jujuy, Wednesday, July 28, 1999).

The production of vicuña fiber under captive conditions is said to benefit the individual campesino rancher, and is said to be growing in popularity. Proponents claim that this program benefits the status of vicuña in the wild, because the ranchers support the program and, therefore, tolerate the presence of non-captive vicuña in the provinces. The program also is claimed to have enhanced the relationship between ranchers and the National Gendarmes, which has improved protective measures for vicuña. The National Gendarmes have apparently succeeded in reducing poaching of wild vicuña, although we have not been able to obtain any quantitative information that demonstrates a clear link between establishment of captive vicuña populations and improved conservation status of wild vicuña populations. Growth of wild vicuña populations is not necessarily an indicator of the success of the captive management program, because some populations have increased in areas without captive populations, and because growth of wild populations began in some areas long before captive populations were established.

Based on information available to us, we continue to have concerns over the effectiveness of this captive management model as a conservation tool for wild populations of vicuña. The captive population at Abra Pampa has been developed from a limited number of founder animals (16 females and 6 males). Some scientists have expressed concerns over the genetic fitness of animals in this population. In the proposed rule, we expressed concern about possible genetic and disease consequences if vicuña from the Abra Pampa population were translocated to different provinces and subsequently escape to mingle with the wild population. We no longer believe that these are major threats, primarily because of the very small number of animals involved and the level of veterinary care the captive animals receive. In the proposed rule, we expressed concern that captive populations might be established in the most favorable vicuña habitat areas, thus potentially depriving wild vicuña populations of important resources such as water or forage; we no longer believe that this is a major threat, primarily because of the very small amount of land involved. We are concerned, however, that economic gains realized from sales of vicuña fiber may be used by individual ranchers to increase the size of their domestic livestock herds, thus increasing grazing pressure on vicuña habitats outside enclosures. Such a result was predicted in a study of campesino communities and vicuña utilization in Catamarca Province, conducted by Rabinovich et al. (1991), although Rabinovich cautioned that those results were site-specific.

We are not yet convinced that the INTA captive management program will be able to provide socioeconomic benefits to a large number of people over the long term, thereby reducing pressure on wild vicuña populations, for the following reasons. We understand that only about 20 individual ranchers have captive herds, so the number of people realizing a benefit from this program is very small in comparison to the total number of Puna residents. The number of captive herds is not likely to increase substantially in the near future. We do not have enough information to determine the exact financial return realized by individual ranchers participating in the captive management program, because it varies based on the price of the fiber and the amount obtained per shearing, but average annual income appears to be in the range of US $750 to $1,100 per year per rancher. This may or may not constitute a substantial return, depending on the individual ranchers involved. However, it appears that all or most individual ranchers are indebted (for the fencing materials) to the same company that purchases their fiber. This may put the ranchers at a disadvantage in obtaining the highest price possible for their fiber. Last, it does not appear that any of the proceeds from sales of vicuña fiber or fiber products are channeled into conservation programs for wild vicuña, thus there is no direct or even indirect financial link between these programs.

The Grupo Especialista en Camelidos Sudamericanos (GECS) of the IUCN/SSC believes that captive management could be compatible with conservation of wild vicuña populations and natural habitats if the following conditions are met: (1) That habitat and food availability for free populations is not threatened by captive operations; (2) that the risk of mingling captive and wild, free-ranging vicuñas is minimized with efficient fencing and continued monitoring; (3) that local human communities have an active participation in tasks and also in revenues emerging from vicuña use; and (4) that part of these revenues be reinvested in the conservation goal. One captive management operation in Argentina appears to have begun fulfilling the criteria outlined by GECS. The Asociacion Civil de Artesanos y Productores “San Pedro Nolasco de los Molinos” (Los Molinos) has a structure wherein its 25 participating families (120 individuals) share tasks and benefits of using the vicuña, has established a captive management operation (Criadero Coquena-El Refugio de las Vicuñas) in an area not immediately within occupied vicuña habitat, has conducted a vicuña population survey in the Molinos Department of Salta Province, and is interested in further developing and implementing a conservation program for wild vicuña. Los Molinos obtained its vicuña on loan from CEA INTA in 1994, but does not rely on CEA INTA for technical support. It has not accepted any financial support for developing its operation, but has accepted a variety of technical support from different regional agencies. Los Molinos does not sell the raw fiber but uses it to produce a finished product on site.

Los Molinos' model of captive vicuña management differs from the CEA INTA management model in that it includes a component of research and conservation of wild vicuñas, attempts to “add value” to the raw fiber by producing traditional crafts, thereby increasing the financial return to the local community, and provides economic benefits to multiple persons rather than to an individual rancher. The Los Molinos program appears to have a demonstrable conservation benefit for wild vicuña populations, and a link between conservation activities and economic benefits to members of the cooperative.

Vicuña population trends throughout Argentina are positive, and populations have increased to the extent that we no longer consider them to be endangered by previous or current overutilization. We do, however, consider the vicuña to be threatened by overutilization throughout Argentina because appropriate conservation mechanisms are not yet fully implemented, and populations have not yet recovered to the extent practicable, based on successful conservation and management.

Population Status. A country-wide census in 1996 recorded 33,844 vicuña in Bolivia (CNVB 1996). In 1997, the total population was estimated at about 35,500 (DNCB 1997, pers. comm.), while in 1999, the total population was estimated at 45,000 animals (CITES 2000a). Population data determined by direct and total counts of individuals on selected habitat areas are best for the three experimental pilot areas—Ulla Ulla, Mauri-Desaguadero and Lipez Chichas—whose populations were transferred to CITES Appendix II in 1997. Periodic censuses have occurred over a 30-year period for Ulla Ulla, and over a 15-year period for the other two pilot areas. Populations have been growing steadily in each area during the period that censuses have been conducted (CITES 2000b).

The Bolivian vicuña population is believed to be increasing, and perhaps has reached carrying capacity in a few areas. Population growth has been accomplished by increases in vicuña population density in known habitat areas, and population expansion into heretofore unoccupied habitat areas. It is believed that the principal reason for the growth in the general vicuña population is the protection provided by the campesino communities, especially those that have government supported game wardens.

Population Utilization. Some campesino communities in Bolivia remain hostile to vicuñas because of crop depredation or perceived competition with domestic livestock, and the fact that few economic benefits are presently realized from vicuña. Some vicuña may be killed as a consequence. In addition, vicuña are known to be poached in Bolivia (CITES 1997b). Poaching levels may be high enough to warrant concern. For examples, one person was arrested outside La Paz with 324 vicuña skins in his possession, and tour operators in remote areas claim to encounter skinned vicuña carcasses on a regular basis (E. Hoffman, pers. comm. with K. Johnson, DSA, 1999). Game wardens report isolated cases of poaching of 3 to 20 animals (CITES 2000a). Vicuña products, including rugs made from many skins, can be seen for sale in the San Francisco Plaza in La Paz (E. Hoffman, pers. comm. with K. Johnson, DSA, 1999). Local authorities use vicuña ponchos, scarves, and blankets, especially at traditional celebrations (CITES 1997b). The fiber used in these products comes from animals killed illegally (CITES 1997b). The granting of custodianship to local communities, and the delegation of monitoring responsibilities to the provincial governments is expected to provide a mechanism to address this issue.

Vicuña are not captured in Bolivia for educational or scientific purposes. There is no intent to have commercial meat operations as the only authorized commerce will be in fiber and fiber products from live-shorn vicuñas from wild populations.

Bolivia's National Program for the Conservation of Vicuña is in the early stages of implementation. Bolivia is developing a program for harvesting and marketing fiber shorn from wild, free-ranging vicuña; this program borrows significantly from the successful program of wild population management and utilization in Peru. The initial step of the National Program was to transfer three substantial vicuña populations in areas where campesino commitment was high (Ulla Ulla, Mauri-Desaguadero, Lipez Chichas) from CITES Appendix I to II, with a zero quota for export. This proposal was adopted by the CITES Parties at COP 10 in 1997. The transfer allowed the development and refinement of pilot management and shearing programs that would eventually be expanded to other vicuña habitats. The second step was the conclusion of an agreement between the Programma Quinua Potosi (PROQUIPO) and the DNCB (Direcciõn Nacional de Conservación de la Biodiversidad Unidad de Vida Silvestre) to operate the Pilot Center of Sud Lipez to actually develop and demonstrate those management and shearing programs. The pilot project involves the capture and shearing of live vicuñas, and the manufacture of fabric and eventually the sale of vicuña fiber for the manufacture of textiles to demonstrate the potential economic benefit to campesino communities. The third step was the removal of the zero quota for export at COP 11 in 2000; this would help provide the basis for implementing the program on a more widespread basis. Bolivia subsequently reported an export quota of 1.975 kilograms for 2000 with the CITES Secretariat. A fourth step, a proposal to transfer all remaining populations in Bolivia to Appendix II (CITES 2000a), was presented at COP 11 but withdrawn because of opposition by the other Vicuña Convention countries. That proposal is likely to be re-submitted at a future COP, perhaps COP 12. With approval of such a program the live-shearing program could be expanded country-wide.

Vicuña population trends throughout Bolivia are positive, and populations have increased to the extent that we no longer consider them to be endangered by previous or current overutilization. We do, however, consider the vicuña to be threatened by overutilization throughout Bolivia because appropriate conservation mechanisms are not yet fully implemented, and populations have not yet recovered to the extent practicable, based on successful conservation and management. Vicuña currently occur on approximately 3.4 million ha in Bolivia, whereas their potential range in Bolivia has been estimated at approximately 10 million ha (INFOL 1985 cited in CITES 2000a). Although vicuña will never occupy that range fully, due to habitat changes, grazing by domestic livestock, and human developments, there still appears to be considerable room for continued vicuña population recovery in Bolivia.

Population Status. Over 96 percent of the vicuña (19,200 of an estimated 19,850) in Chile occur in Parinacota Province in the extreme northeastern portion of the country. The populations in the Caquena Management Zone (estimated to be 3,700 vicuña) and in the National Vicuña Reserve (estimated to be 8,050 vicuña) in this Province were transferred to CITES Appendix II in 1987; these would be the only populations utilized commercially should a program to capture and shear live vicuña be initiated (Galaz 1997, pers. comm.). The adjacent population in Lauca National Park (estimated to be 7,410 vicuña) was retained on Appendix I to provide further control over vicuña in this protected natural area. The remaining four percent of Chile's vicuñas occur elsewhere in the upper Andean tablelands in northeastern Chile. About 650 vicuña are believed to occur in small scattered groups over about 215,000 ha elsewhere in the Tarapaca Region and in the neighboring Antofagasta and Atacama Regions.

The vicuña population of Chile has grown steadily since 1975 (Bonacic 2000). The vicuña population in Parinacota Province is believed to be near carrying capacity in typical vicuña habitat.

Population Utilization. The hunting, capture, and sale of vicuña and vicuña products is unlawful in Chile without the authorization of the Servicio Agricola y Ganadero (SAG-Agriculture and Livestock Service) of the Chilean government as specified in the new hunting law of 1996 (Ley No. 19.473) (Iriarte 2000). At present, there is no national or international trade in vicuña fiber, no exports of living vicuña and no known illegal trade in vicuña products. Poaching is not considered to be a problem in Chile (E. Hoffman, pers. comm. with K. Johnson, DSA, 1999).

For more than 10 years, the Chilean government investigated the development of a sustainable use program based on capture, live-shearing, and release of wild vicuña (Bonacic 2000a). Now, we understand that Chile is planning to develop a captive management program that may take up to 3,000 vicuña from the wild and maintain them in captivity in the altiplano (Galaz, pers. comm., cited in Bonacic 2000a). We do not know if, to date, Chile has actually authorized the capture of wild vicuñas to develop the program. The new 1996 law gives SAG the authority to authorize sustainable use of the vicuña when certain conditions have been met (Iriarte 2000). The only exports of raw fiber, as of 1997, were in order to obtain analyses of the fiber's physical properties (SAG 1997, pers. comm.).

Vicuña population trends in Chile are positive or stable, and populations have increased to the extent that we no longer consider them to be endangered by previous or current overutilization. However, because a vicuña fiber industry could potentially be approved in Chile, this factor is still considered to threaten the Chilean population until such time as control mechanisms for harvest and commercialization are demonstrated to be adequate to control overutilization.

Population Status. The 1997 census in Peru estimated a population of 103,650 vicuña on 6,361,000 ha of habitat (Hoces 1997, pers. comm.) in the high Andean tablelands of the departments of Ancash, Apurimac, Arequipa, Ayacucho, Cajamarca, Cusco, Huancavelica, Huanuco, Junin, La Libertad, Lima, Moquegua, Pasco, Puno and Tacna. More recent estimates suggest a total population of around 142,000 vicuña (Bonacic 2000a), however, we have not seen any reports that would corroborate this population estimate on the basis of scientifically-sound survey methodology.

The recovery of vicuña populations in Peru has not been steady, a consequence of political, economic, and environmental fluctuations over the past 35 years. Vicuña numbers were at a low point in 1965, grew steadily until a prolonged drought in 1978 to1979 caused numbers in Pampa Galeras to decline substantially, gradually built to high levels in 1990, but were significantly reduced by illegal hunting from 1991 to 1994, while there was civil unrest in the region (Wheeler and Hoces 1997). Vicuña populations have been increasing since 1994. This is believed to be due to a combination of factors—the decrease in civil unrest in the high Andean region, increased efforts to control vicuña poaching, and the development of a vicuña fiber utilization program. Several campesino communities now participate in the protection, management and utilization of vicuña in cooperation with the National Council of South American Camelids (CONACS) and the National Institute of Natural Resources (INRENA), which is the designated CITES Management Authority for Peru.

Population Utilization. At present, legislation in Peru permits the taking of vicuña if properly authorized and technically supported. Some culling of vicuñas (about 1,000 per year) did occur from 1977 to 1983 but no quotas have been declared and little if any legal take has occurred since that date. Any take for scientific studies is rare and, when authorized, is tightly controlled. There is no legal utilization of vicuña for meat or parts.

Commercialization of vicuña fiber products in Peru is under a system of controls that include monitoring fiber collections, governmental supervision by CONACS and INRENA, and the involvement of local campesino communities. CONACS and INRENA are responsible for protecting and monitoring vicuñas within protected areas such as Huascaran National Park, Pampa Galeras National Reserve, and the Salinas and Aguada Blanca National Reserve. The protection and monitoring of vicuñas in the rural communities is a major responsibility of participating campesino communities in coordination with CONACS and INRENA.

Two models of vicuña utilization are being pursued in Peru at the present time. The first model is based on the management of wild populations, utilizing capture methods based on the traditional “chaku,” a surround technique used by the Incas to capture and shear vicuñas and release them back to the wild (Wheeler and Hoces 1997). The second model is based on captive management of vicuña. Since 1996, CONACS has been promoting the establishment of Sustainable Use Modules (SUMs) which are fully fenced enclosures of approximately 500 to 1,000 ha, each with about 250 vicuña.

The “chaku” model was the initial approach to wild vicuña population management undertaken in Peru after populations began to recover. The most successful experiences with wild vicuña population management have been in the campesino communities of Lucanas and San Cristobal around Pampa Galeras. CONACS developed the “chaku” technique for capturing and harvesting fiber from living wild vicuña at Pampa Galeras, and has taught and supervised campesino communities in this technique and other aspects of vicuña management. The process used to capture and shear vicuñas was observed in August 1997 by Dr. H. Short (on behalf of the National Fish and Wildlife Foundation) and described in the proposed rule. That description will not be repeated here, but readers are referred to the proposed rule (64 FR 48743, September 8, 1999).

At Pampa Galeras and in other areas of the Peruvian Puna, vicuñas occur on communal lands and campesinos represent a plentiful and important work force. As described in the proposed rule, vicuña management essentially provides full-time employment for many members of the Lucanas community-building fences, obtaining and cleaning fleeces, providing protection to vicuña and providing instruction to other communities wishing to establish a vicuña industry. It was reported that as part of the arrangement between the Lucanas community and the government, 500 vicuñas were used to restock vicuña habitats in neighboring communities, in exchange for both a hydro-electric project and other economic assistance. The Pampa Galeras experience has been the model for other campesino communities in Peru, and is the model for similar efforts in Bolivia.

Efforts are underway in Peru to implement a large-scale captive management program for vicuña (Lichtenstein et al. 1999b, Sahley 1999, Sahley et al. submitted). Since 1996, CONACS has been promoting the establishment of Sustainable Use Modules (SUMs), which are fully fenced enclosures (corrals) of approximately 500 to 1,000 ha, each with about 250 vicuña. We understand that long-range plans were to establish SUMs in 600 campesino communities by the year 2000 according to the Sociedad Nacional de Criadores de la Vicuña (SNV-National Society of Vicuña Breeders) (SNV 1997, cited in Sahley 1999). We do not know if this goal was achieved, but by 1999 approximately 21,000 vicuña (D. Hoces, Technical Director, CONACS, in litt. to FWS, 1999) were being held in approximately 250 Sustainable Use Modules in Peru (Lichtenstein et al. 1999b). Translocation of animals is involved in this management model; vicuña are relocated from areas where they are abundant to establish captive populations in new areas.

Dr. Gabriela Lichtenstein of the Instituto Internacional de Medio Ambiente y Desarrollo-America Latina (IIED-AL) and her research team assessed and compared the two vicuña management systems in Peru (i.e., captive management versus wild, free-ranging management) from ecological, social, and economic perspectives, and conducted a feasibility analysis of both systems (Lichtenstein et al. 1999b). Two projects in the Department of Ayacucho-Proyecto Barbara D'Achille, Lucanas and Proyecto de San Cristobal y aledañas-were evaluated as case studies. Their findings strongly indicate that management of wild, free-ranging vicuña populations is a better alternative than captive management from all three perspectives—ecological, economic, and social. They concluded that the economic viability of enclosures (corrals) for campesino communities is questionable, especially when the enclosures have fewer than 250 vicuñas. They characterized captive management as a high risk venture with low profit potential. Conversely, wild management was characterized as a medium to high risk investment with potential high profits. After considering the low carrying capacity of the habitat, they determined that placing more than 333 vicuñas per corral would have a negative impact on the environment and increase desertification. They noted that genetic interchange and dispersal were limited by enclosures, and expressed concern about translocating animals without paying proper attention to health and genetic concerns. They suggested that the SUM project would greatly benefit if it were accompanied by solid research on ecological carrying capacities, and on the genetic, behavioral, and population impacts of enclosures on vicuñas.

Sahley (1999) and associates (Sahley et al. submitted) have also compared the two management systems in Peru, and evaluated two projects as case studies—Tambo Cañahuas and Toccra in Arequipa. Their results are similar to those of the Lichtenstein group—that the wild, free-ranging management model ( i.e., capture, shearing, and release of wild vicuñas) is biologically sustainable in the short- and long-terms, and is economically more viable that the captive (corral) management model.

These two projects are the only research efforts we are aware of that have systematically examined and compared the costs and benefits of both captive and wild, free-ranging vicuña management systems from ecological, social, and economic perspectives. Therefore, we attach great importance to their conclusions, although we recognize that these conclusions would benefit from additional research. Certainly additional research and monitoring of SUMs is needed to assess the ecological, economic, and social viability of that program. We are concerned about the genetic and population dynamics implications of captive management, as well as habitat implications ( i.e., how are carrying capacities of corrals determined, and what happens when that capacity is reached?). We are also concerned about possible disease and genetic implications of vicuña translocations to start new populations, and believe that such translocations should be based on a previously-developed protocols that consider the possible genetic and disease consequences. We are not aware that Peru has developed such protocols. Wheeler et al. (2000) have identified four genetically distinct groups of vicuñas in Peru. They urge caution with regard to repopulation efforts, and suggest that translocations occur within the four distinct groups rather than among the groups.

Vicuña population trends throughout Peru are positive, and populations have increased to the extent that we no longer consider them to be endangered by previous or current overutilization. We do, however, consider the vicuña to be threatened by overutilization throughout Peru because appropriate conservation mechanisms are not yet fully implemented, and populations have not yet recovered to the extent practicable, based on successful conservation and management. Vicuña in Peru in 1997 were estimated to occur on about 6.4 million ha throughout the 15 to 17 million ha of suitable habitat in the Peruvian highlands Although vicuña will never occupy that range fully, due to habitat changes, competition with domestic livestock, and human developments, there still appears to be considerable room for continued vicuña population recovery in Peru.

Vicuñas, like most mammals, suffer from a variety of endo- and ecto-parasites. Mange caused by parasitic mites can result in skin lesions and loss of hair, especially in those populations that coexist with domestic livestock, and during drought conditions. Major predators on vicuña include the puma ( Felis concolor ), the Andean fox or zorro ( Dusicyon culpaeus ) and perhaps the Andean condor ( Vultur gryphus ), which may kill newborn and sick animals.

Vicuña populations in the four range countries are not believed to be endangered or threatened by the impacts of disease or predation, because populations are increasing or stable and there is no evidence of widespread disease outbreaks as an actual or potential mortality factor. We remain concerned about the potential for disease transmission from vicuña that are translocated for the development of new captive populations or for release to the wild to supplement wild populations.

The regulatory mechanisms in place vary among the four range countries under consideration. However, all four countries are signatories to both CITES and the Vicuña Convention.

In Argentina, the First Interprovincial Technical Conference on the Conservation of the Vicuña met in 1972, and agreed to develop methods to capture and transport vicuña to recolonize vicuña habitats, and to develop a plan for the management, shearing, and the manufacture of handicrafts from vicuña fiber. Additional meetings integrated the provincial vicuña programs, established a national program, and established the “Vicuña Regional Commission” as a mechanism to attain national coordination on the vicuña management program (Comisión Regional de la Vicuña 1994).

In 1988, Argentina signed the Vicuña Convention, and has since carried out its programs within the context of this agreement. Argentine National Law for the Conservation of Wildlife 22.421 and its Regulatory Decree No. 691, provides for vicuña protection. The Constitution of Argentina, reformed in 1994, assures the rights of the provinces over their respective natural resources, assures the rights of indigenous people to use these natural resources in traditional ways, and embraces the conservation of biological diversity and the sustainable development of natural resources.

Several laws and decrees within the Vicuña Provinces (Jujuy, Salta, Catamarca and La Rioja) list the vicuña as a protected species, establish protected areas for the species, prohibit hunting, and prohibit commercialization, transportation, or manufacturing of parts or products from hunted animals, regardless of origin. Laws and decrees also allow the installation of captive breeding operations, and the commercialization and industrialization of products from captive-bred animals (Canedi 1997, pers. comm.).

The Departments of Renewable Natural Resources for Jujuy, Salta, Catamarca and La Rioja Provinces have signed agreements with the Secretariat of Natural Resources and Human Environment and the National Gendarmes, a Federal Law Enforcement group, to enforce provisions of Provincial and National laws that prohibit illegal hunting and smuggling. The Gendarmes conduct extensive patrols in rural areas and on the borders, and have officers at the ports, airports, and borders. They are charged with conducting inspections and investigations involving the illegal trafficking of vicuña fiber. Their environmental division meets with campesinos and tries to promote the vicuña program. Although the Department of Renewable Natural Resources and the National Gendarmes may not have sufficient resources at their disposal, they are thought to be working effectively with the campesino communities of the Puna as evinced in the increase of vicuña populations of the Puna (Canedi 1997, pers. comm).

At present, the only legal vicuña fiber in Argentina is that obtained from the shearing of live vicuña from officially-authorized captive populations. We understand that a registry of authorized captive populations is maintained by the national CITES Management Authority, the Direccion de Fauna y Flora Silvestres (V. Lichtschein, pers. comm. with K. Johnson, OSA, 1999). Shorn fiber is bagged, tagged, weighed, sealed, recorded, and the government agency that supervised the shearing is identified on the bag. Fiber from an officially-authorized rancher can be directly auctioned for export, or the rancher, if an artisan, can retain the fiber, and make and sell cloth. Either the fiber buyer or the rancher-artisan would need a transport permit, and that transport permit would need to be presented when the CITES export permit is requested.

Fabric or products manufactured by rancher-artisans need to be marked with the official seals or stamps. Such fabrics or products, expected to be limited in numbers, can only be sold to licensed outlets recognized and approved by the government. The check on whether fabrics or products are made from legal vicuña fiber will be made by comparing weights of raw fiber harvested under supervised shearing operations against the combined weight of raw fiber retained by the authorized rancher-artisan and the weights of fiber products produced by that rancher-artisan. From information available to us, it appears that provincial natural resource departments are responsible for supervising shearing. However, at present, it is not clear to us which government agency approves licensed outlets for vicuña products, and which agency conducts checks of producers to ensure that only legal fiber is used in artisan products. There is apparently no national legislation that covers all aspects relating to the trade in vicuña or the administrative aspects relating to this trade (CITES 1997a).

Argentina acceded to CITES in 1981. Wild vicuña populations in Jujuy Province , and so-called “semi-captive populations” of vicuña in Jujuy, Salta, Catamarca, La Rioja and San Juan Provinces were transferred from CITES Appendix I to II at COP10, effective September 18, 1997. Exports are limited to fiber shorn from live animals, cloth and articles made from that cloth, luxury handicrafts and knitted articles. The reverse side of cloth and cloth products must bear the logo adopted by countries signatory to the Vicuña Convention and the words “VICUÑA-ARGENTINA.” All specimens not meeting the above conditions are considered to be included in Appendix I and subject to the prohibition against primarily commercial trade, and other CITES Appendix I requirements.

Articles bought by a foreign tourist at a government-authorized store are legal to export as personal accompanying baggage only after a CITES export permit containing all required information has been obtained. The only apparent control of artisan goods sold to residents of Argentina and later resold to foreign tourists is the requirement that the tourist have a CITES export permit upon return to his/her country of origin. This is also a requirement for importation of any personal effects or personal accompanying baggage by U.S. residents, under the conditions of the special rule accompanying this rule. If the fiber from an authorized captive breeder is sold at auction, the buyer, presumably a fiber-processing company, would get a permit from the Provincial Natural Resources Department. The buyer would present that permit to the National Secretary for Natural Resources and Human Environment to obtain the required CITES permit for export.

The National Gendarmes are expected to aid provincial authorities in the control of poaching, illegal trade, and transport of unauthorized products within the country and the routine inspection of products of legal origin to certify their origin. Collaboration will also be provided by the National Aeronautical Police at the country's airports to intensify inspections of commercial products and passengers.

We do not consider the vicuña to be endangered by inadequate regulatory mechanisms in Argentina. We do, however, consider the species to be threatened by this factor because many of the regulatory mechanisms are in early stages of implementation, we are still unclear about several aspects related to the control of trade in raw vicuña fiber and artisan products, and there appears to be no national legislation that covers all aspects relating to the trade in vicuña or the administrative aspects relating to this trade.

Bolivia's Programa Nacional de Conservación de la Vicuña (National Program for Vicuña Conservation, or National Program) is in the early stages of implementation. The Ministerio de Desarrollo Sostenible y Medio Ambiente (MDSMA-Ministry of Sustainable Development and the Environment) is the agency responsible for managing all renewable natural resources. The Direction General de Biodiversidad (formerly the Dirección Nacional de Conservación de la Biodiversidad—DNCB) is located within this Ministry and is responsible for policies dealing with conservation of biological diversity. This agency is responsible for executing the National Program for Vicuña Conservation.

Several laws and decrees are relevant to vicuña management in Bolivia. Bolivia and Peru signed the Treaty of La Paz in 1969 to provide a measure of international protection for vicuña (this treaty was a precursor of the current Vicuña Convention). The Agrarian Reform Act of 1953 enabled some rural communities to have private lands and other rural communities to have unfenced communal lands which are advantageous to free-roaming vicuñas. Law 12301 (Ley de Vida Silvestre, Parques Nacionales, Caza Y Pesca) passed in1975, describes the government's obligation to regulate and administer the use of wildlife resources. Law 1333 (Ley del Medio Ambiente), passed in 1992, provides for sustainable use of authorized species, based on technical, scientific, and economic information. Law 1715, passed in 1996, created the National Institute for Agrarian Reform and promoted the sustainable use of land, the promotion of practices favoring conservation and the protection of biodiversity, and the concept that lands where conservation is practiced would not be subject to expropriation.

Decreto Supremo (Supreme Decree) No. 22641 declared a complete and indefinite ban on the killing of all wildlife species, and states that the ban can only be lifted through legislation indicating the species and conditions that have lead to the lifting of the ban (CITES 1999). Supreme Decree No. 25458 of July 1999 ratified the general and indefinite ban established by Supreme Decree No. 22641, and modifies Articles 4 and 5 of that decree, related to lifting of the ban.

Supreme Decree No. 24529, passed in March 1997, authorized regulations for the protection and management of vicuñas in Bolivia. These regulations grant custodianship of vicuña populations to the rural communities (although the national government maintains ownership of the vicuña), give the rural communities the exclusive rights to use vicuña fibers, subject to the listed regulations, defines the conditions under which use of vicuña fiber is carried out, and establishes the Sistema de Vigilancia de Vicuña (SVV-System for the Protection of the Vicuña). We understand that the government has begun implementation of regulations by holding workshops in campesino communities to explain the regulations, by publishing print media guides describing the regulations and by helping campesino communities begin their compliance with the regulations (DNCB 1997, pers. comm.). We also understand that the government has begun coordinating with the National Police and military to help curb illegal activities dealing with vicuña and their products.

Under the regulations, all existing vicuña fiber products, including those in the domestic market, are to be inventoried and registered and all new products or fibers will also be registered. In the future, any non-registered vicuña products will be considered illegal. The only fiber that will be allowed for commercial purposes will be that obtained from live-shorn vicuña that have been captured according to regulations. Only raw fiber for the manufacture of cloth will be exported. Bolivia does not have a textile industry with the capability to manufacture vicuña fiber cloth (DNCB 1997, pers. comm.).

The overall management of vicuña in Bolivia is based on National Program for Vicuña Conservation. The National Program emphasizes the management and use of wild free-ranging populations of vicuña, population monitoring, and the improvement of habitat quality. Under the regulations, the harvesting of vicuña fiber will only be allowed in organized campesino communities that (1) have the rights to capture and shear vicuña and utilize vicuña fiber, and (2) have delegated authority to work with government authorities in the management and conservation of the vicuña. These campesino communities are the only legal benefactors of the sale of vicuña fiber. The National Program will be carried out in these communities. Management will be based on Planes de Manejo de la Vicuña (PMV) (Vicuña Management Plans) prepared by and for each Area de Manejo Communal (AMC) (Communal Management Area). Management plans will include population monitoring and habitat management and improvement measures. This information will be basic to decisions to conduct vicuña drives, and in the conduct of capture and shearing operations. Monitoring information will be provided by game guards and recommendations for management actions will be produced in the campesino communities. Government authorities will be present when vicuña capturing and shearing occurs. The authorities will register the number of vicuña captured, the number shorn, the weights of fleeces, etc., and supervise the bagging, weighing, marking and sealing of vicuña fiber. This information will be provided to the CITES authorities for reference purposes and information later provided in support of export permit applications must correspond to the on-site records. The Netherlands government has provided financial support to underwrite initial efforts to implement the National Program.

The regulations also establish the SVV, which provides for the development of an inter-community network for the management and protection of the species. This network will have direct control over activities such as fiber sales, and will also have responsibilities for determining status and trends in vicuña populations. The SVV will be composed of game guards made up of local vicuña protection officers and Park Rangers who are the enforcement officers within protected areas such as National Parks. The game guards will be responsible for the protection and control of vicuña in each conservation unit. Protection and control efforts will also be supported by special units of the National Police. The DGB will regulate and coordinate the activities and participants within the SVV.

Bolivia has been a CITES Party since 1979. The vicuña populations of the Mauri-Desaguadero, Ulla Ulla and Lipez-Chichas Conservation Units were transferred from CITES Appendix I to II, with a zero annual export quota, at COP10, effective September 18, 1997. The zero quota was removed at COP11; Bolivia subsequently reported an export quota of 1.975 kilograms for 2000 to the CITES Secretariat. Exports will be limited to fiber shorn from live animals, and to cloth and articles made from such cloth, including luxury handicrafts and knitted articles. The reverse side of cloth and cloth products must bear the logo adopted by countries signatory to the Vicuña Convention and the words “VICUÑA-BOLIVIA.” All specimens not meeting the above conditions are considered to be included in Appendix I and subject to the prohibition against primarily commercial trade, and other CITES Appendix I requirements.

The military will assist in patrols, inspections and the seizures of illegal products. Customs will assist in the control of the export and import of fiber at the ports of entry, border posts and airports to assure that CITES requirements are fulfilled.

We do not consider the vicuña to be endangered by inadequate regulatory mechanisms in Bolivia. We do, however, consider the species to be threatened by this factor because many of the regulatory mechanisms are in early stages of implementation, and because poaching continues to be a threat in Bolivia.

The existing regulatory mechanisms in Chile are dedicated to the protection of vicuña. Law No. 4.601 passed in 1929, modified by Law No. 19.473 passed in 1996, indefinitely closed the hunting season for vicuña throughout the Republic of Chile. The hunting, capturing and selling of vicuña (and vicuña parts) is outlawed. Persons possessing, transporting or involved in commercial operations with vicuña products need to prove their actions are authorized by these laws. The Servicio Agricola y Ganadero (SAG) of the Ministry of Agriculture is the CITES Management Authority, and has a Department for the Protection of Renewable Natural Resources and a Wildlife Division. Authorized customs officers (uniformed police), accredited officials from SAG, and representatives of the National Forest Corporation (CONAF) provide protection to vicuñas within the national protected areas system (SAG 1997, pers. comm.).

As of 1997, it was illegal to possess vicuña parts and products in Chile, and the only exports of raw fiber were in order to obtain analyses of the fiber's physical properties (SAG 1997, pers. comm.). Because it was illegal to possess vicuña parts and products, no mechanisms had been developed for registering or identifying raw fiber, or for establishing warehouses for storing fiber (SAG 1997, pers. comm.). At that time (1997), preliminary plans for a vicuña fiber industry, should it become authorized, indicated that the responsible party would need to provide an application to SAG indicating, among other things, the likely number of animals to be captured and sheared, the expected yield of the fiber harvest, the logistics of the capture and shearing operation, where and how the fiber would be stored and its eventual destination (SAG 1997, pers. comm.). SAG, should they approve the application, would oversee the capture process, register the quantity of harvested fiber, and seal the warehouse where the fiber was being stored. SAG would also provide the necessary export permits, after determining that the quantities for export correspond to quantities authorized and actually harvested. Preliminary plans also suggested that a mechanism would be established to deal with the production and sale of luxury handicrafts and knitted articles. That organization would be responsible for receiving the fiber, registering and offering the fiber products for sale, for recording the sale of registered craft items and providing an accounting of the sale of registered craft items (SAG 1997, pers. comm.).

We are aware that plans are currently underway to develop a captive management program in Chile, and that it is expected that vicuña will be captured from the wild and kept in captivity in the altiplano (Galaz, pers. comm., cited in Bonacic 2000a). We do not know if Chile has thus far authorized the capture of any vicuñas to develop the program. Bonacic (2000a) states that, at present, the legal, social, and ecological framework for vicuña captive management in Chile is complex and unresolved. However, the Government of Chile, in its comments to our proposed rule, stated that the present Hunting Law (Ley No. 19.473) provides Chile with the necessary tools and mechanisms for control and administration for sustainable management of the vicuña, and/or the establishment of captive breeding operations, so long as hunting is prohibited and its capture is strictly regulated.

Chile acceded to CITES in 1975. The vicuña populations of Paranicota Province, Region of Tarapaca (specifically, the populations in the Caquena Management Zone and the Vicuña National Reserve) were transferred from CITES Appendix I to II in 1987 at COP6. Any future export of vicuña products would be limited to fiber sheared from live animals in Appendix II populations and to cloth and items made from that cloth including luxury handicrafts, and knitted articles. The reverse side of cloth and cloth products would need to bear the logo adopted by countries signatory to the Vicuña Convention and the words “VICUÑA-CHILE.” All specimens not meeting any of the above conditions are considered to be included in Appendix I and subject to the prohibition against primarily commercial trade, and other CITES Appendix I requirements.

We do not consider the vicuña to be endangered by inadequate regulatory mechanisms in Chile. However, because a vicuña fiber industry is likely to be approved in Chile but the adequacy of the specific regulatory mechanisms for harvest and commercialization have not yet been demonstrated, we consider that the vicuña is still threatened by this factor in Chile.

The major breakthroughs in the management of vicuña in Peru were new laws transferring the custodianship of vicuñas to campesinos and campesino communities, giving the campesinos the responsibility to protect vicuñas, the implementation of protective measures, the determination that it was not necessary to kill vicuña in order to obtain fiber from their hides, and the development of management techniques to herd, capture, and shear living vicuñas (Wheeler and Hoces 1997). The key factor has been allowing the benefits of vicuña management and utilization to accrue collectively to campesino communities (rather than to middlemen or other individuals) (Wheeler and Hoces 1997).

The Peruvian infrastructure promoting vicuña management and commerce in vicuña fiber products includes the Consejo Nacional de Camelidos Sudamericanos (CONACS—Council of South American Camelids) which is a public, decentralized organization of the Ministry of Agriculture in charge of the promotion, standardization, and control of activities with the South American camelids. CONACS has offices in Lima and throughout the vicuña range, and is the proprietor of the trademarks “VICUÑA-PERU” and “VICUÑA-PERU-ARTESANIA.” The Institute of Natural Resources (INRENA) is also a public, decentralized organization of the Ministry of Agriculture, and is in control of all renewable natural resources in Peru, and is the CITES Management Authority for Peru. The National Society of Vicuña Breeders (SNV) is a private organization which represents approximately 780 campesino communities, and coordinates vicuña management within and between campesino communities (“Communal Committees of the Vicuña”) and with CONACS at both regional and national levels (Hoces 1997, pers comm.).

Several national laws protect vicuña and regulate its management. Law 26496, passed in 1995, has been especially important as it promotes protection and provides penalties for the illegal hunting of vicuña, gives the custodianship of vicuña herds that occupy campesino community lands to those campesino communities, and allows the campesinos to be responsible for the conservation, management and the utilization of the species. The law also establishes the Official Registry of the Vicuña which provides a record-keeping process that controls and tracks volumes of fiber from the time the vicuña are sheared in the field to the time that fiber is sold as cloth or merchandise on the international market. Pertinent laws are implemented through the “Communal Committees of the Vicuña” which form the basis for the national conservation and management of the vicuña. There is a system of park rangers shared by groups of communities and these park rangers can access the National Ecological Police and Peruvian Army units to help control the illegal killing of vicuña.

CONACS and INRENA authorize and control management activities, including vicuña capture. The shearing, collecting, processing and commercialization of vicuña fiber from wild vicuñas or from groups contained within permanent enclosures, is controlled by CONACS and INRENA. The processing and commercialization of the fiber is done by a single company that obtained that right through a competitive bidding process at a supervised auction. A cooperative agreement exists between the SNV, and the company winning the competitive bid, apparently to ensure that campesino communities will be correctly represented in the distribution of monies from the sale of vicuña fiber and fiber products. There is an authorized shearing season, and shearing is supervised by personnel representing CONACS, SNV and INRENA. Pertinent information is gathered at the time of shearing, and a report describing the shearing operation (numbers of animals, fiber weights per animal, etc.) and signed by a representative of the Communal Committee and CONACS, becomes part of the record at the Official Registry of the Vicuña.

After vicuña populations in Peru began to recover, management was initially based on wild, free-ranging populations, utilizing capture methods based on the traditional “chaku,” a surround technique used by the Incas to capture and shear vicuñas and release them back to the wild (Wheeler and Hoces 1997). Since 1996 CONACS has promoted a captive management program where up to 250 or more vicuñas are maintained in enclosures of approximately 500 to 1,000 ha (Lichtenstein et al. 1999b, Sahley 1999, Sahley et al. submitted). Described in a Ministry of Agriculture project entitled “Programa de fortalecimiento de la competitividad communal en la crianza le vicuñas,” this program significantly changed the management orientation in Peru from wild, free-ranging populations to captive populations. This approach has detracted from the management of wild vicuña populations, and has cost campesino communities more than $2 million to build fences—incurring a substantial debt in the process—while little has been spent strengthening anti-poaching efforts (Sahley et al. submitted).

In September 2000, then-President Fujimori issued a Supreme Decree (Decreto Supremo No. 053-2000-AG, titled “Facultan al Ministerio a traves del CONACS, entregar en custodia y usufructo hatos de vicuña y/o guanaco a personas naturales y juridicas, distintas de comunidades campesinas”) that, among other things, extended custodianship of vicuña to all persons having vicuña on their lands, and not just campesino communities as specified in Law 26496. This Decree appears to undermine the very basis for recent vicuña management in Peru—management by campesino communities, with benefits accruing to those communities—by allowing other individuals or companies with land holdings to commercialize fiber from vicuña on their lands. The SNV adamantly opposes this Decree, and is working to get the new government to drop or reverse it.

A second source of legal fiber is from vicuña that die from natural causes or are found or obtained by campesinos or park rangers, or from skins that are seized in successful anti-poaching operations. Such specimens, to become legal, must be declared to SNV and CONACS, and entered into the vicuña registry. Legal fiber is gathered and stored in private warehouses belonging to the campesino communities, registered in the vicuña registry, and is under the control of CONACS. Illegal fiber is prevented from entering commerce because it is not registered with the vicuña registry, and consequently not included in the fiber stores represented in the single legal auction. The vicuña registry records weights of fiber sheared or collected, carded or cleaned, and these weights are used by CONACS and SNV throughout the processing and commercialization process to indicate whether final products likely only contain legal fiber. The CITES Management Authority controls commerce by requiring records of fiber weights and opinions from CONACS before any products (fiber, cloth or articles) can be legally either imported or exported from Peru.

The processing of vicuña fiber and the commercialization of vicuña products involves a joint venture “Association in Participation” between SNV and the consortium that won the right to commercialize the vicuña fiber. We understand that the consortium has the unilateral right to acquire fiber at least through 2002 (Lichtenstein et al. 1999b). The SNV provides the fiber to the consortium which includes a Peruvian company that fabricates cloth from the vicuña fibers, which is then sent to an Italian manufacturing plant where luxury clothing items are produced. A second Italian firm then handles the promotion and marketing of the finished vicuña products (Hoces 1997, pers. comm.). CONACS supervises production to guarantee that all articles will contain 100 percent vicuña fiber. This process is designed to maximize the financial returns from the vicuña fibers; the profits from the final sales are distributed, under the supervision of CONACS and INRENA, to the campesino participants. Additionally, a percentage of the final sale price on the completed product goes to the campesino communities. As of 1997, raw vicuña fiber was selling for approximately $500 per kilogram in Peru; current prices are around $300 per kilogram (Lichtenstein et al. 1999b, Sahley et al. submitted).

The vicuña populations of Pampa Galeras National Reserve and Nuclear Zone, Pedregal, Oscconta and Sawacocha (Province of Lucanas), Sais Picotani (Province of Azangaro), Sais Tupac Amaru (Province of Junin), and Salinas Aguada Blanca National Reserve (Provinces of Arequipa and Cailloma) were transferred from CITES Appendix I to II in 1987 at COP6. All remaining Peruvian vicuña populations were transferred to Appendix II in 1994 at COP9, effective February 16, 1995. All exports are limited to cloth fabricated from the 3,294 kg (7,260 lbs) of stored fiber present in November 1994 or from the fiber stores obtained from the recent authorized shearing of live animals or from dead animals listed in the vicuña registry, and items made from that cloth and to certain luxury handicrafts and knitted articles produced in Peru. The reverse side of cloth and cloth products must bear the logo adopted by countries signatory to the Vicuña Convention and the words “VICUÑA-PERU-ARTESANIA.” This trademark will also occur on all luxury artisan products and knitted articles of vicuña fiber. Peru also plans to add to the produced articles, a seal or identification tag with codes indicating the origin of the product, the assigned trademark or label and the CITES permit number. All specimens not meeting any of the above conditions are considered to be included in Appendix I and subject to the prohibition against primarily commercial trade, and other CITES Appendix I requirements.

The vicuña is not considered to be endangered by inadequate regulatory mechanisms in Peru. The species is, however, considered to be threatened by this factor, especially in light of the potential threats posed by Supreme Decree No. 053-2000-AG.

Vicuña are susceptible to extended periods of drought. Vicuña populations in Argentina may have actually declined during the later 1990's as a result of a prolonged drought. Drought conditions or extremely degraded ranges adversely impact vicuña by causing them to seek new habitats with the possible dissolution of some family groups, reductions in reproductive success, and perhaps increased mortality.

The great potential threat to the vicuña is that pelts can be easily obtained from poached animals and that the fiber industry may actually prefer the longer fibers that can be obtained by soaking and pulling hairs from pelts, rather than the clipped hairs from legal fleeces (Canedi 1997, pers. comm). The vulnerability of the vicuña to political instability is well documented. For example, vicuña populations in Peru were estimated at about 80,000 in 1988, but were reduced to low levels from 1989 to 1993 when vicuña fiber from poached animals was used to help finance guerilla activities.

The vicuña represents one of the most significant natural economic resources available in many Andean highlands that have limited human populations with limited economic opportunities at their disposal. Indigenous people fully realize that a poached vicuña can be used once but that the managed, live-sheared vicuña can be used repeatedly (Wheeler and Hoces 1997). Assigning the responsibility of vicuña management to campesino ranchers and/or campesino communities and granting those people the opportunity to legally realize economic gains from their management and protection efforts represents a significant bio-political decision.

The definition of “species” in section 3(15) of the Act includes “. . . any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Distinct vertebrate population segments for purposes of listing under the Act are defined in the Service's February 7, 1996, Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DVPS) (61 FR 4722). For a population to be listed under the Act as a distinct vertebrate population segment, three elements are considered: (1) The discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing ( i.e., is the population segment, when treated as if it were a species, endangered or threatened?). International borders may be used to delineate discrete population segments where there are significant differences in: (1) The control of exploitation; (2) management of habitat; (3) conservation status; or (4) regulatory mechanisms on each side of the border (61 FR 4722). Discrete population segments can also be defined by marked physical, physiological, ecological, or behavioral separation from other populations of the same taxon.

We recognize the vicuña population of Ecuador as a distinct vertebrate population segment for purposes of listing under the ESA. The vicuña population of Ecuador was established only recently, beginning in 1988, through the introduction of animals translocated from Argentina, Bolivia, and Chile. This introduction was accomplished within the multilateral frameworks of both the Vicuña Convention and the CITES Convention (Ecuador is a Party to both). To date, we are unaware of any verified palaeontological, archaeological, anthropological, or historical evidence that the vicuña ever occurred in Ecuador prior to this introduction. According to Wheeler (1995), vicuña remains have not been found in either palaeontological deposits (Hoffstetter 1986 cited in Wheeler 1995) or archaeological sites (Miller and Gill 1990 cited in Wheeler 1995) in Ecuador. There may be some vague references in Spanish colonial documents, but these are not verified. Despite the recent origin of its population, for purposes of consideration under the Act, we consider Ecuador to be part of the range of the species.

The vicuña population of Ecuador is geographically isolated (disjunct) and separate from other vicuña in Argentina, Bolivia, Chile, and Peru. Ecuador's population remains listed in CITES Appendix I, and plans to commercially utilize the species in the future appear to be uncertain. Furthermore, the Parties to the Vicuña Convention view this as a separate population, worthy of special recovery efforts. Although the countries of the region that are Parties to the Vicuña Convention view this as an “experimental”population, that should not be seen in the domestic U.S. context of experimental populations under the Act, where criteria and definitions differ. For these reasons, the Ecuadoran population of vicuña satisfies the discreteness and significance criteria of the DVPS Policy, and, therefore, merits treatment as a distinct population segment under the ESA. Furthermore, because of its small size, recent origin, and uncertain management and protective status, we continue to believe that this population warrants a classification of endangered under the Act.

In contrast to the rather strict requirements for listing entities (species, subspecies, or distinct vertebrate population segments) under the ESA, CITES has retained a degree of flexibility in the listing process through the use of annotations. There is no specific requirement that populations be delimited by national borders or marked biological differences. CITES Article I defines a species as “any species, subspecies, or geographically separate population thereof”, and different populations of a species can be listed in different CITES Appendices (although it is generally discouraged). Thus, it has been possible to transfer sub-national populations of vicuña in Argentina, Bolivia, and Chile from Appendix I to Appendix II. This accounts for the lack of perfect symmetry between populations determined to be threatened and those currently listed in Appendix II of CITES.

The Service finds that the vicuña is a highly vulnerable species whose populations are generally increasing over a large area of the high Andean tablelands of Argentina, Bolivia, Chile and Peru. The current status of the vicuña appears attributable to decisions made in the range countries to protect and, more recently, to sustainably use this species with direct involvement of local people and communities. Laws, decrees, and infrastructures have been or are being developed to help local people manage and protect the species. In return the local people are beginning to receive, or appear likely to receive, socio-economic benefits from that management that will benefit both individuals and their communities. The management and protection accorded to the vicuñas, by local people in cooperation with governmental entities, provides the best opportunity for the vicuña to survive as a species and as a very important part of the Puna and Altoandina ecosystems.

In developing this rule, we have carefully assessed the best available biological and conservation status information regarding the past, present, and future threats faced by vicuña. Criteria for reclassification of a threatened or endangered species, found in 50 CFR part 424.11(d), include extinction, recovery of the species, or error in the original data for classification. Available information indicates that the vicuña is not endangered (in danger of extinction) in all or a significant portion of its range. The population of Ecuador, a distinct population segment under the Act in accordance with the Service's Policy on Distinct Vertebrate Population Segments, remains endangered. Available information further indicates that the vicuña remains threatened throughout its range by: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) previous or current overutilization; and (3) the possibility of inadequately controlled harvest pressures, including poaching, in Argentina, Bolivia, Chile, and Peru. A reclassification of the vicuña from endangered to threatened under the Act will, with the attendant special rule, allow carefully regulated commerce of vicuña products into the United States. Funds generated in range countries by opening the United States market should help provide the resources necessary to enhance the conservation and management of the species.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition of conservation status, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing encourages and results in conservation actions by Federal, State, and private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions that are to be conducted within the United States or on the high seas, with respect to any species that is proposed to be listed or is listed as endangered or threatened and with respect to its proposed or designated critical habitat, if any is being designated. However, because the vicuña is not native to the United States, no critical habitat is being proposed for designation with this rule. Currently, with respect to vicuña, no Federal activities, other than the issuance of CITES re-export certificates, are known that would require conferral or consultation. According to the CITES Convention, Appendix-II species need only a CITES export permit issued by the exporting country for their importation into another country. However, because of its listing as endangered under the Act, the importation and exportation of specimens of Vicugna vicugna presently require an Endangered Species Act permit issued by the Division of Management Authority. Consequently, a consultation with the Division of Scientific Authority is currently required before the Division of Management Authority can issue any import or export permit for vicuña.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species, and to provide assistance for such programs, in the form of personnel and the training of personnel.

Sections 4(d) and 9 of the Act, and implementing regulations found at 50 CFR part 17.31, (which incorporate certain provisions of 50 CFR part 17.21), set forth a series of prohibitions and exceptions that generally apply to all threatened wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (within U.S. territory or on the high seas), import or export, ship in interstate commerce in the course of a commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees or agents of the Service, other Federal land management agencies, the National Marine Fisheries Service, and State conservation agencies (50 CFR part 17.21(c)(3) and part 17.31(b)).

Permits may be issued to carry out otherwise prohibited activities involving threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR part 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: scientific research, enhancement of propagation or survival, zoological exhibition or education, incidental taking, or special purposes consistent with the Act. All such permits must also be consistent with the purposes and policy of the Act as required by section 10(d). Such a permit will be governed by the provisions of § 17.32 unless a special rule applicable to the wildlife (appearing in § 17.40 to § 17.48) provides otherwise. Because a special rule is being promulgated concurrently with this reclassification, permits will be issued under section 10 only for bona fide scientific research contributing to conservation of the species in the wild ( e.g., blood samples for genetic analyses or tissue samples for disease diagnosis). No additional permits are required as a result of this rule; rather, this rule removes restrictions.

Threatened species are generally covered by all prohibitions applicable to endangered species, under 50 CFR part 17.31. We may, however, develop special rules if deemed necessary and advisable to provide for the conservation of the species. The special rule described here for § 17.40 allows commercial importation to and re-exportation from the United States of certain specimens from threatened populations of vicuña which are also listed in CITES Appendix II. Importation could be restricted in the future from a particular country of origin or re-export if that country has been identified as a subject to a recommended suspension of trade by the CITES Standing Committee or at a CITES Conference of the Parties. Interstate commerce within the United States and re-export of legally imported vicuña parts will not require U.S. threatened species permits.

This rule revises § 17.11(h) to reclassify Vicugna vicugna from endangered to threatened in Argentina, Bolivia, Chile and Peru to reflect more accurately the present status of this species.

The intent of the special rule is to enhance the conservation of the vicuña through support for properly designed and implemented programs for vicuña conservation throughout their native range. The special rule is intended to support appropriate conservation efforts of the four range states of Argentina, Bolivia, Chile, and Peru, by encouraging certain of their management programs that allow utilization of vicuña fiber from live-sheared animals, with benefits accruing to local communities.

We believe that the most effective results, both for conservation of vicuña and production of economic benefits for local people, are likely to be achieved with management of wild, free-ranging populations, such as the systems being undertaken in certain parts of Peru and in Bolivia. We continue to have concerns about captive management systems for vicuña, especially the extensive captive management program being undertaken in much of Peru, because the conservation value and socioeconomic benefits of captive management have yet to be demonstrated as sustainable over the long term (Lichtenstein 1999, Sahley 1999). Our conservation concerns relate to issues of disease transmission, genetic effects, impacts on population dynamics and social organization, and habitat impacts. We believe that the best opportunity for captive management is provided by the management recommendations of the South American Camelid Specialist Group, and we believe that demonstration of the long-term biological and economic viability of captive management will require (1) further research by trained ecologists, geneticists, sociologists, and economists, and (2) an effective monitoring program for the captive management systems.

These concerns notwithstanding, we believe that progress has been and is being made, and that range countries should be allowed time to demonstrate the conservation value and related socioeconomic benefits of the management system or systems they have adopted. From a law enforcement perspective, it would be difficult if not impossible for the United States to allow importation of fiber only from wild management systems and exclude fiber from captive management systems, especially if both wild and captive management occur in a single country. Thus, the special rule pertains to all threatened, Appendix II populations. The special rule has provisions that are intended to encourage range countries to demonstrate the conservation value of the management system or systems they have adopted. The special rule: (1) Requests range countries wishing to export to the United States to submit a country-wide Management Plan for vicuña; (2) requires range countries to submit an annual report documenting the status of vicuña populations and implementation of management programs in each country; (3) calls for the Service to conduct a biennial review of range country management programs to determine if those programs are effectively achieving conservation benefits for the vicuña; and (4) can be administratively suspended if the conservation or management status of threatened vicuña populations change in one or more range countries such that continued recovery of vicuña populations is compromised.

The special rule allows commercial importation and re-exportation into/from the United States of certain products (raw, unprocessed vicuña fiber or cloth, or items made from that fiber, including luxury handicrafts and knitted articles) that are properly identified, and have accompanying valid, legal CITES Appendix II export permits or re-export certificates. Under the special rule, a threatened species permit for individual shipments would not be required under 50 CFR part 17 for these products only. To be imported, vicuña products must originate in populations that are listed both as threatened under the Act and in Appendix II of CITES. Vicuña fiber and products from Appendix I populations, as well as any live vicuña, embryos, gametes, and tissue samples, are not covered. Their importation would still require a threatened species permit, a CITES Appendix I import permit (issued by the U.S.), and an Appendix I export permit.

We are aware that there have been poaching and illegal trade problems with this highly valuable species in the past, and any loss of control would seriously undermine the conservation programs of the range countries, thereby potentially jeopardizing vicuña populations. Therefore, we will not allow the import of vicuña products from threatened, Appendix II vicuña populations from countries of origin or countries of manufacture or re-export that have been determined by the CITES Conference of the Parties or the CITES Standing Committee not to be effectively implementing the Convention. Specifically, the special rule prohibits importation from countries of export or re-export that have either (1) failed to designate a Management Authority or Scientific Authority, or (2) have been identified by the CITES Conference of the Parties, the CITES Standing Committee, or in a Notification from the Secretariat as a country from which Parties should not accept CITES permits. Trade restrictions or a suspension of trade can be placed on a range country if the Service administratively determines that the conservation or management status of vicuña in that country has changed such that continued recovery of vicuña populations is compromised as a result of one or more of the following factors:

(A) A change in range country laws or regulations that lessens protection for vicuña;

(B) A change in range country management programs that lessens protection for vicuña;

(C) A documented decline in wild vicuña population numbers;

(D) A documented increase in poaching of vicuña;

(E) A documented decline in vicuña habitat quality or quantity; or

(F) Other natural or man-made factors affecting the species' recovery.

For vicuña and vicuña products, there is no personal effects exemption in the special rule, since the CITES listings (and associated annotations) specifically do not allow for a personal effects exemption. The specific removal of the personal effects exemption for Appendix II populations was adopted by the CITES Parties at the request of range countries, to assist their enforcement efforts. Therefore, items purchased by travelers overseas or personal items owned by people moving to the United States will require appropriate CITES export documents (permits or re-export certificates) from countries of export or re-export, to be imported legally into the United States. This is based on analysis of the annotation for the vicuña in the official CITES Secretariat list of the CITES Appendices, and dialogue with the CITES Secretariat in Geneva. It is also based on domestic law of the four range countries, which all require CITES export documents, even for items purchased by tourists. The vicuña annotations in the CITES Appendices are unique, and require that only certain products be exported from the range countries, under very strict conditions. In Argentina, articles bought by a foreign tourist at a government-authorized store can be exported as personal accompanying baggage only after a CITES export permit has been obtained. In countries of re-export as well, very strict controls are required. The items manufactured from vicuña fiber are very expensive luxury articles, and illegal trade poses a serious risk to the species and the conservation programs of the range states. Furthermore, all range countries require CITES permits for export of vicuña products, and do not recognize any personal effects exemption. It would be inappropriate and unfair to require export documents from range countries but not from countries of manufacture (re-export). Therefore, all tourist souvenirs or other personal items require a CITES export document from the country of export or re-export in order to be legally imported into the United States. We have clarified this in the final special rule, which may have been unclear in the proposed rule.

All vicuña products must comply with all product annotations as described in the CITES Secretariat's official annotated list of the CITES Appendices (available at http://www.cites.org). If those product annotations change at a future meeting of the Conference of the Parties (COP) to CITES, the Service will have to re-evaluate its 4(d) rule. The criteria for determining if a vicuña product is properly identified are drawn directly from the CITES Appendices, and the product annotations for vicuña contained therein. For cloth and cloth products, the only products that can be imported are those where the reverse side of cloth and cloth products bear the logo adopted by countries signatory to the Conveño para la Conservación y Manejo de la Vicuña (Vicuña Convention), and the words “VICUÑA-(Country of Origin)” (country of origin of the vicuña fiber in the products—Argentina, Bolivia, or Chile) or “VICUÑA-PERU-ARTESANIA” (for Peru only). For finished vicuña products (including luxury handicrafts and knitted articles) and any bulk shipments of raw fiber, the product or shipment must have a seal or identification tag with codes describing the origin of the vicuña product, the trademark or label (“VICUÑA—(Country of Origin)” or “VICUÑ-PERU-ARTESANIA”) and the CITES export permit number. These criteria for properly identified vicuña products are contained in the CITES Appendices themselves. The product annotations were proposed by the range countries and adopted by the CITES Conference of the Parties. Therefore, we are aligning U.S. importation practices with those approved by the CITES Parties, in order to facilitate effective conservation of the vicuña in range countries, and the enforcement and management efforts of those countries.

Requirements of the Act for the monitoring of species also apply to foreign species (see final rule “Endangered and Threatened Wildlife and Plants; Removal of Three Kangaroos From the List of Endangered and Threatened Wildlife” published in the Federal Register on March 9, 1995; 60 FR 12887). Monitoring programs are conducted to ensure that species continue to fare well after delisting or downlisting occurs. These monitoring programs frequently include population and species distribution surveys, assessment of the condition of important habitats for the species, and assessment of threats identified as relevant to the species. We depend on range countries to monitor their vicuña populations. To assist in our efforts to monitor vicuña populations, we will ask range countries to submit a Management Plan (voluntary), and will require range countries to submit annual reports (mandatory).

Management Plan. Governments of range countries wishing to export specimens of vicuña to the United States for commercial purposes (Argentina, Bolivia, Chile, and Peru) will be requested to provide the Service with a Management Plan that specifies how vicuña are currently being managed and will be managed in that country during the period after this rule takes effect. The voluntary submission of a Management Plan will help the Service in its biennial review of country management programs (discussed in the section immediately below). For each range country, the following information should be provided in its Management Plan:

(A) Recent data on vicuña distribution, populations numbers, and population trends for the entire country, and for specific protected areas, and a detailed description of the methodology used to obtain such estimates;

(B) A description of research projects currently being conducted related to the biology of vicuña in the wild, particularly its population biology, habitat use, and genetics;

(C) A description of national and/or provincial laws and programs relating to vicuña conservation, in particular those laws and regulations related to harvest and use of the vicuña, and export of vicuña parts and products;

(D) A description, including approximate acreage, of land set aside as natural reserves or national parks that provide protected habitat for the vicuña;

(E) A description of programs to prevent poaching, smuggling, and illegal commercialization of the vicuña;

(F) A description of current management and harvest (or “sustainable use”) programs for wild populations of the vicuña, including: the location and population size of all wild populations being managed for sustainable use; the harvest management practices being used for each population; current harvest quotas for wild populations, if any; protocols for vicuña translocations undertaken as part of the use program; the specific financial costs of and anticipated revenues to be generated by the sustainable use program; and the anticipated conservation benefits that will result from the sustainable use program;

(G) A description of current management and harvest (or “sustainable use”) programs for captive and so-called “semi-captive” populations of the vicuña, including: the number and location of all captive and “semi-captive” populations; the size in hectares of each captive enclosure and the number of vicuña maintained therein; protocols for vicuña translocations undertaken as part of the use program; the anticipated financial costs of and revenues to be generated by the sustainable use program; and the anticipated conservation benefits that will result from the sustainable use program (information on management of captive and “semi-captive” populations must be separate from that provided for management of wild populations).

Annual Report. Governments of range countries wishing to export specimens of vicuña to the United States for commercial purposes (Argentina, Bolivia, Chile, and Peru) will be required to provide the Service with an annual report that includes the most recent information available on the conservation and management status of the species, gathered by the respective range countries to fulfill their CITES scientific and management requirements. Failure to submit an annual report could result in a restriction on trade or a total suspension of trade in specimens of vicuña from the range country concerned. For each range country, the following information should be provided in the annual report:

(A) A description of any revisions to the management program, especially any changes in management approaches or emphasis;

(B) New information obtained in the last year on vicuña distribution, population status, or population trends, for the country as a whole or for specific protected areas, and a detailed description of the methodology used to obtain such estimates;

(C) Results of any research projects concluded in the last year on the biology of vicuña in the wild, particularly its population biology, habitat use, and genetics, and a description of any new research projects undertaken on the biology of vicuña in the wild, particularly its population biology, habitat use, and genetics;

(D) A description of any changes to national and/or provincial laws and programs relating to vicuña conservation, in particular those laws and regulations related to harvest and use of the vicuña, and export of vicuña parts and products;

(E) A description of any changes in the number or size of natural reserves or national parks that provide protected habitat for the vicuña;

(F) A summary of law enforcement activities undertaken in the last year, and a description of any changes in programs to prevent poaching, smuggling, and illegal commercialization of the vicuña;

(G) A description of the current management and harvest (or “sustainable use”) programs for wild populations of the vicuña, including: any changes in the location and population size of wild populations being managed for sustainable use; any changes in the harvest management practices being used for each population; any changes in current harvest quotas for wild populations, if any; any changes in protocols for translocations undertaken as part of the use program; a summary of the specific financial costs of and revenues generated by the sustainable use program over the last year; and a summary of documented conservation benefits resulting from the sustainable use program over the last year ( e.g., revenues returned to conservation activities as a result of the program, demonstrated reductions in poaching as a result of the program, or improved habitat conditions as a result of the program);

(H) A description of current management and harvest (or “sustainable use”) programs for captive and so-called “semi-captive” populations of the vicuña, including: any changes in the number and location of all captive and “semi-captive” populations; any changes in the size (ha) of each captive enclosure and the number of vicuña maintained therein; any changes in protocols for translocations undertaken as part of the use program; a summary of the financial costs of and revenues generated by the sustainable use program over the last year; and documented conservation benefits resulting from the sustainable use program over the last year ( e.g., revenues returned to conservation activities as a result of the program, demonstrated reductions in poaching as a result of the program, or improved habitat conditions as a result of the program). Information provided for captive and “semi-captive” populations must be clearly separate in the report from information related to wild populations;

(I) Export data for the last year.

The first annual report will be due one year after the special rule goes into effect, with subsequent reports due every year on the anniversary of that date. All information provided by the range countries will be available for public review.

The Service will conduct a review every two years, using information in the annual reports and any other pertinent information it has available, to determine whether range country management programs are effectively achieving conservation benefits for wild vicuña populations. Based on information contained in the annual reports, the Service may administratively restrict or suspend trade from a range country if it determines that the conservation or management status of threatened vicuña populations in a range country has changed, such that continued recovery of the vicuña population in that country may be compromised. Trade restrictions or suspension may result from one or more of the following factors:

(A) A change in range country laws or regulations that lessens protection for vicuña;

(B) A change in range country management programs that lessens protection for vicuña;

(C) A documented decline in wild vicuña population numbers;

(D) A documented increase in poaching of vicuña;

(E) A documented decline in vicuña habitat quality or quantity; or

(F) Other natural or man-made factors affecting the species' recovery.

Consistent with sections 3(3) and 4(d) of the Act, this rule also contains a special rule that amends 50 CFR 17.40 to allow commercial importation and re-exportation, under certain conditions, of raw (unprocessed) vicuña fiber or cloth, or items made from that fiber, including luxury handicrafts and knitted articles, without a threatened species import permit otherwise required by 50 CFR part 17, if all requirements of the special rule and 50 CFR part 13 (General Permit Procedures), part 14 (Importation, Exportation, and Transportation of Wildlife), and part 23 (Endangered Species Convention—CITES) are met.

The reclassification of vicuña to “threatened” and the accompanying special rule allowing commercial trade into the United States for certain products without a threatened species import permit does not end protection for the species. To be imported, vicuña products must originate in populations that are listed both as threatened under the Act and in Appendix II of CITES, and be accompanied by valid, legal CITES Appendix II export permits or re-export certificates that are consistent with all requirements of both CITES and the laws and regulations of the exporting country concerned.

Commerce with the United States in vicuña products will only be allowed with countries that have designated both a CITES Management Authority and Scientific Authority, and have not been identified by the CITES Conference of the Parties, the CITES Standing Committee, or in a Notification from the CITES Secretariat, whereby Parties are asked not to accept shipments of specimens of any CITES-listed species from the country in question. This restriction will also apply to intermediary countries, when vicuña products are exported for manufacturing and other purposes, and the finished products are re-exported from intermediary countries to the United States. The U.S. Management Authority will provide on request a list of those countries that have not designated both a Management Authority and Scientific Authority, or that have been identified as a country from which Parties are asked not to accept shipments of specimens of any CITES-listed species. The list will be published on our web site (http://international.fws.gov).

This special rule does not cover the importation of live vicuña, vicuña embryos, gametes, or tissue samples, because these specimens remain in Appendix I. Furthermore, we discourage most such imports, which could be used to establish populations outside the species' natural range, because we believe that such operations would undermine the conservation efforts of range countries to manage and sustainably utilize this species. Imports of blood or tissue samples for bona fide scientific research contributing to the conservation of the species in the wild could be allowed with the necessary CITES Appendix I import and export permits and a threatened species permit issued under section 10.

Trade restrictions or a trade suspension can be placed on a range country if the Service's Division of Scientific Authority administratively determines that the conservation or management status of vicuña in that country has changed, such that continued recovery of vicuña populations is compromised, as a result of one or more of the six factors listed in the preceding section ( e.g., a change in range country laws or regulations that lessens protection for vicuña). This provision gives the Service ability to react effectively to potential conservation concerns that may emerge, such as dramatic increases in poaching in some areas, or changes in laws or regulations that appear to be detrimental to the species in the wild, or the lack of submission of the required annual report.

The Service's Division of Scientific Authority will conduct a review every two years, using information in the annual reports, to determine whether range country management programs are effectively achieving conservation benefits for wild vicuña populations. Based on information contained in the annual reports, the Service may restrict or suspend trade from a range country if it determines that the conservation or management status of threatened vicuña populations in a range country has changed, such that continued recovery of the vicuña population in that country may be compromised. Trade restrictions or suspension may result from one or more of the six factors listed in the preceding section ( e.g., a change in range country laws or regulations that lessens protection for vicuña).

In our judgment the protective regulations set out in the final special rule contain all of the measures that are necessary and advisable to provide for the conservation of the vicuña in Argentina, Bolivia, Chile, and Peru.

We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the ESA. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

The primary author of this rule is Dr. Kurt A. Johnson, Division of Scientific Authority, U.S. Fish and Wildlife Service, Washington, DC 20240 [703-358-1708].

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley (Lepidochelys kempii), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) are listed as endangered. Loggerhead ( Caretta caretta ) and green ( Chelonia mydas ) turtles are listed as threatened, except for nesting populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

The incidental take of these species as a result of shrimp trawling activities has been documented in the Gulf of Mexico and in the Atlantic Ocean. Under the Endangered Species Act (ESA) and its implementing regulations, taking sea turtles is prohibited, with exceptions identified in 50 CFR 223.206. Existing sea turtle conservation regulations (50 CFR part 223, subpart B) require most shrimp trawlers operating in the Gulf and Atlantic areas to have a NMFS-approved TED installed in each net rigged for fishing, year-round. The use of TEDs reduces mortality of loggerhead, green, Kemp's ridley, and hawksbill sea turtles. Because leatherback turtles are larger than the escape openings of most NMFS-approved TEDs, use of these TEDs is not an effective means of protecting leatherback turtles.

Through a final rule (60 FR 47713, September 14, 1995), NMFS established regulations to provide protection for leatherback turtles when they occur in locally high densities during their annual, spring northward migration along the Atlantic seaboard (“the Leatherback Contingency Plan”). Within the Leatherback Conservation Zone, NMFS may close an area for 2 weeks when leatherback sightings exceed 10 animals per 50 nm (92.6 km) during repeated aerial surveys pursuant to § 223.206(d)(2)(iv)(A) through (C).

NMFS has recently proposed amending the sea turtle conservation regulations to provide more comprehensive protection to all sizes and species of sea turtles from trawling (66 FR 50148, October 2, 2001). A major element of the proposed amendment is the use of larger escape openings on TEDs. Recent data have shown that the current regulatory minimum opening sizes of TEDs are not sufficient to allow large green and loggerhead turtles to escape. In addition, the Leatherback Contingency Plan which was developed to ensure that larger openings would be deployed when necessary to protect leatherbacks has been insufficient because the plan is limited to a geographic area that does not always encompass areas where the larger opening is needed. Implementation of the 2 week actions specified in the plan also often lag behind the time when they are most needed.

The sea turtle conservation regulations provide a mechanism to implement further restrictions of fishing activities, if necessary to avoid unauthorized takings of sea turtles that may be likely to jeopardize the continued existence of listed species or that would violate the terms and conditions of an incidental take statement or incidental take permit. Upon a determination that incidental takings of sea turtles during fishing activities are not authorized, additional restrictions may be imposed to conserve listed species and to avoid unauthorized takings. Restrictions may be effective for a period of up to 30 days and may be renewed for additional periods of up to 30 days each (50 CFR 223.206(d)(4)).

NMFS has been notified by the Georgia Department of Natural Resources (GADNR) that extraordinarily high numbers of threatened and endangered sea turtles have stranded, especially off southern Georgia. From May 5, 2002, through May 19, 2002, a total of 89 dead sea turtles have washed ashore along the Georgia coast (shrimp zones 30 and 31). Of these, 66 are loggerheads, 10 are Kemp's ridleys, 3 are leatherbacks, and 10 have not been identified to species. By comparison, the 12-year average of stranded sea turtles in Georgia for this 2-week period is 18, so the 89 strandings are 5 times more than normal. Considering that strandings are only a minimum estimate of actual mortality, these strandings represent a serious impact to the recovery and survival of the local sea turtle populations.

Information from GADNR and NOAA enforcement indicates that there is a high level of shrimp effort off Georgia, which is typical for this time of year. Georgia state waters are closed to shrimping, so the fishery is currently operating only in Federal waters, targeting high-value, large white shrimp. These sources also indicate that the behavior of the fishery is somewhat different than in previous years. There are a large number of very large, powerful shrimp vessels from Gulf states (estimated at 25-30 boats) that are participating in the fishery. These boats are generally capable of fishing more, larger trawls at higher speeds than the local boats. Although white shrimp are generally only caught during the day, these large vessels are fishing 24-hours-a-day and using long tow times (up to 12 hours in some cases) to maximize effort given the distance from their local ports. Local fishermen fish mostly in the day to target white shrimp using tow times of 2 to 4 hours. The 24-hour fishing, in conjunction with long tow times, represents a significant increase in effort in this area. An aerial survey to monitor shrimping effort on May 21 found that most of the large trawlers were concentrated in the southern part of the state, in the area of highest strandings.

This spring has seen a very high abundance of leatherback turtles migrating close to the Atlantic coast in Florida, Georgia, South Carolina, and North Carolina. Under the Leatherback Contingency Plan, a 14-day requirement to use leatherback-excluding TEDs was implemented for Zone 31 (north and central Georgia) through May 3. Weather and logistical problems have prevented effective aerial surveys since then, and the requirement to use the larger-opening TEDs has lapsed. GADNR estimates that up to 70 percent of the local fishermen are using leatherback-excluding TEDs, which are also effective at releasing large green and loggerhead turtles. The large, Gulf vessels have been fishing south of Zone 31 or arrived after May 3, and NMFS believes that most are not using TEDs with large openings.

NMFS believes that the increased shrimping effort, particularly the switch to nighttime fishing and very long tow-times, in conjunction with the use of TEDs with smaller escape openings is responsible for the sharp increase in turtle mortality and strandings along the Georgia coast.

NMFS has analyzed other factors that might have contributed to the turtle strandings, including environmental conditions. No possible causes other than shrimp trawling have been identified. A single vessel fishing for sharks using drift gillnets a fishing method that is known to capture and kill sea turtles has been operating in Federal waters in the Florida-Georgia border area in the past month. A NMFS observer has been aboard that vessel for every trip since April 29 and no sea turtle interactions have been observed. There is no evidence of a red tide or other harmful plankton bloom event or any major disease factor. The condition of the stranded turtles has indicated that they were generally healthy and actively foraging prior to their deaths, which is consistent with strandings resulting from shrimp trawling. The carcasses have primarily been coming ashore in the vicinity of areas where shrimping effort has been concentrated. NMFS and state personnel will continue to investigate factors other than shrimping that may contribute to sea turtle mortality in the area, including other fisheries and environmental factors.

Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental taking of sea turtles in 50 CFR 223.206(d) does not authorize incidental takings during fishing activities if the takings would violate the restrictions, terms or conditions of an ITS or incidental take permit, or may be likely to jeopardize the continued existence of a species listed under the ESA. Therefore, the Assistant Administrator for Fisheries, NOAA (AA) issues this determination that further takings of threatened and endangered sea turtles in Atlantic Ocean waters off the southeast coast of the U.S. by shrimp trawlers using TEDs with small escape openings and shrimping during nighttime hours are unauthorized because such takes may be likely to jeopardize the continued existence of the sea turtle populations. The AA, thus, imposes this additional restriction to shrimp trawling activities to conserve threatened and endangered sea turtles. The AA has determined that conservation measures are necessary in an area larger than the current hot-spot of strandings to prevent fishing with practices that are harmful to sea turtles from simply relocating to other areas in the South Atlantic. Additionally, the use of large, leatherback size TED openings will allow for easier escape for all turtle species, decreasing stress and mortality to the turtles. Specifically, the AA requires shrimp trawlers, who are required to use TEDs, fishing in offshore Atlantic waters west of 77 57.5' W. longitude (approximately Cape Fear, NC) and north of 30 N. latitude (just north of St. Augustine, FL) to use TEDs with escape openings modified to exclude leatherback turtles (meeting the specifications at 50 CFR 223.207(a)(7)(ii)(B)(1) or (2) or § 223.207(c)(1)(iv)(B)) and prohibits shrimp trawling in the same area between 1 hour after sunset and 1 hour before sunrise. This restriction is effective from May 24, 2002 through 11:59 p.m. (local time) June 24, 2002.

This restriction has been announced on the NOAA weather channel, in newspapers, and other media. Shrimp trawlers may also call (727)570-5312 for updated information on shrimping restrictions.

The AA may withdraw or modify a determination concerning unauthorized takings or any restriction on shrimping activities if the AA determines that such action is warranted. Notification of any additional sea turtle conservation measures, including any extension of this 30-day action, will be published in the Federal Register pursuant to 50 CFR 223.206(d)(4).

NMFS will continue to monitor sea turtle strandings to gauge the effectiveness of these conservation measures.

This action has been determined to be not significant for purposes of Executive Order 12866.

The AA has determined that this action is necessary to respond to an emergency situation to provide adequate protection for threatened and endangered sea turtles pursuant to the ESA and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this action. It would be impracticable to provide prior notice and opportunity for comment because providing notice and comment would prevent the agency from implementing this action in a timely manner to protect threatened and endangered sea turtles. Notice and opportunity to comment was provided on the proposed rule (57 FR 18446, April 30, 1992) on the final rule establishing the procedures for taking this action. Furthermore, the AA finds good cause under 5 U.S.C. 553(d)(3) not to delay the effective date of this rule for 30 days. Such delay would also prevent the agency from implementing this action in a timely manner to protect threatened and endangered sea turtles. Accordingly, the AA is making the rule effective May 24, 2002 through June 24, 2002.. As stated above, this restriction has been announced on the NOAA weather channel, in newspapers, and other media.

As prior notice and an opportunity for public comment are not required to be provided for this notification by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601 et seq. are inapplicable.

As required by 50 CFR 223.207(d)(4)(iv), NMFS has consulted with the marine fisheries officials in Florida, Georgia, South Carolina, and North Carolina on this emergency action. The required nighttime closure will complement existing nighttime closures of state waters in Georgia, South Carolina, and North Carolina.

The AA prepared an Environmental Assessment (EA) for the final rule (57 FR 57348, December 4, 1992) requiring TED use in shrimp trawls and creating the regulatory framework for the issuance of notifications such as this. The AA also prepared an EA for this action. Copies of the EA are available (see ADDRESSES ).

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The 2002 specification of DAH for Loligo squid was set at 16,898 mt (67 FR 3623, January 25, 2002). This amount is allocated by quarter, as shown below.

Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 80 percent of the quarterly allocation is harvested in Quarters I, II and III, and when 95 percent of the total annual DAH has been harvested. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hours before the effective date of the closure; and publish notification of the closure in the Federal Register . The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for Loligo squid in Quarter II, will be harvested. Therefore, effective 0001 hours, May 30, 2002, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1.13 mt) of Loligo . Such vessels may not land more than 2,500 lb (1.13 mt) of Loligo during a calendar day. The directed fishery will reopen effective 0001 hours, July 1, 2002, when the Quarter III quota becomes available.

This action is required by 50 CFR part 648 and is exempt from review under E.O. 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The Pacific halibut bycatch allowance for the GOA trawl deep-water species fishery, which is defined at § 679.21(d)(3)(iii)(B), was established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002) for the second season, the period April 1, 2002, through June 30, 2002, as 300 metric tons.

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the second seasonal apportionment of the 2002 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery are: all rockfish of the genera Sebastes and Sebastolobus, deep water flatfish, rex sole, arrowtooth flounder, and sablefish.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action because the second seasonal apportionment of the 2002 Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion because the second seasonal apportionment of the 2002 Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.